Ogbonna v Qantas Airways Ltd [No 4] - [2023] WASC 21

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   OGBONNA -v- QANTAS AIRWAYS LTD [No 4] [2023] WASC 21
CORAM:   TOTTLE J
HEARD:   31 JANUARY 2023
DELIVERED          :   6 FEBRUARY 2023
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 judgment on admissions - Where the plaintiff claims there were deemed admissions by the defendants based on the plaintiff's notice to admit facts - Application dismissed

Practice and procedure - Discovery - Defamation - Application for the inspection of documents where legal professional privilege is claimed - Whether legal professional privilege applies to the documents - Turns on own facts

Practice and procedure - Case management - Application for the plaintiff to communicate with the defendants' solicitors in writing to a specified email address - Whether the Rules of the Supreme Court 1971 (WA) and the Supreme Court Act 1935 (WA) confers power on the court to grant the application - Application granted

Legislation:

Federal Court Act 1976 (Cth), s 23, s 37M
Federal Court Rules 2011 (Cth), r 1.32, r 1.35
Rules of the Supreme Court 1971 (WA), O 1 r 4B(1), O 4A r 2, O 26 r 4(2), O 26 r 12, O 30 r 1, O 30 r 2, O 30 r 3, O 66 r 3(2)
Supreme Court Act 1935 (WA), s 16(1)(d)
Supreme Court Act 1970 (NSW), s 23

Result:

Application for judgment on admissions dismissed
Application for the inspection of documents partially dismissed
Certain documents be inspected by another judge of the General Division
Application for the plaintiff to communicate with the defendants' solicitors in writing to a specified email address granted

Category: B

Representation:

Counsel:

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

Solicitors:

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

Cases referred to in decision:

AW v Rayney [2010] WASCA 161
Carey v Korda [2012] WASCA 228; (2012) 45 WAR 181
Christmas Island Resort Pty Ltd v Geraldton Building Co Pty Ltd (No 5) (1997) 18 WAR 334
CMA Assets Pty Ltd v John Holland Pty Ltd [No 2] [2012] WASC 126
CTC Resources NL v Australian Stock Exchange Ltd [2000] WASCA 19; (2000) 22 WAR 48
Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management & Marketing Pty Ltd [2013] HCA 46; (2013) 250 CLR 303
Lampson (Australia) Pty Ltd v Fortescue Metals Group Ltd [No 2] [2010] WASC 217
Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1
McGuirk v University of New South Wales [2010] NSWCA 104
Murdock v Virgin Australia Airlines Pty Ltd [2022] FCA 1074
Ogbonna v Qantas Airways Ltd [2018] WASC 378
Ogbonna v Qantas Airways Ltd [2019] WASCA 146
Ogbonna v Qantas Airways Ltd [2020] HCASL 26
Ogbonna v Qantas Airways Ltd [No 3] [2021] WASC 94
Re Forge Group Construction Pty Ltd (in liq); Ex parte Jones [No 2] [2016] WASC 87
Tec Hedland Pty Ltd v The Pilbara Infrastructure Pty Ltd [2020] WASC 364
The Civil Aviation Authority v The Queen (on the Application of Jet2.com Ltd) [2020] EWCA Civ 35
Woodings v WA Glendinning & Associates Pty Ltd [2019] WASC 54

TOTTLE J:

Part 1 - Introduction

These reasons concern two applications brought by the plaintiff and one application brought by the defendants. They are:
(a)the plaintiff's application for judgment on the basis of deemed admissions he claims were made by the defendants;
(b)the plaintiff's application made by a minute of proposed orders filed on 18 August 2022 for orders that the defendants permit the plaintiff to inspect certain documents they claim are the subject of legal professional privilege; and
(c)the defendants' application made by a minute of proposed orders filed on 4 November 2022 for orders that the plaintiff communicate with the defendants' solicitors solely in writing by way of email to a specified email address.
The applications were heard on 31 January 2023.
After hearing the plaintiff's submissions in support of his application for judgment I dismissed the application, gave brief oral reasons for the decision and said I would provide written reasons explaining the decision in more detail. Those more detailed reasons form part 4 of these reasons. I gave the plaintiff leave to file and serve written submissions within 14 days in respect of the defendants' application for costs.
I reserved judgment in relation to the application for the inspection of documents. My reasons in respect of the inspection application form part 5 of these reasons.
The defendants' application for orders that the plaintiff communicate in writing with the defendants' solicitors was not opposed by the plaintiff save for in one respect to which I will refer. My reasons in respect of this application form part 6 of these reasons.
An application by the defendants for security for costs was to be heard at the same time as the three applications to which I have referred but time did not permit that to occur and the hearing was adjourned to 16 February 2023.
The plaintiff is a litigant in person who is a registered migration agent under the Migration Act 1958 (Cth) by occupation. He has been involved in litigation in the Federal Circuit and Family Court of Australia and its predecessor, the Federal Circuit Court of Australia, the Federal Court of Australia, the District Court of Western Australia and in this court.

Part 2 - Procedural history

The proceedings were commenced by writ filed on 8 September 2016. The present defendants were the only named defendants. The writ was not served until September 2017.
On 10 August 2018 an amended writ was filed. The amended writ joined two additional defendants as the third defendant and the fourth defendant, Western Psychiatry Pty Ltd and Dr Dawn Barker respectively.
On 18 September 2018 the fourth defendant applied for summary dismissal of the claims against her (it appears that the claim against the third defendant had been discontinued). On 13 December 2018 judgment was entered in favour of the fourth defendant and the claims against her were dismissed.[1] An appeal against the decision dismissing the claim against the fourth defendant was itself dismissed on 20 September 2019.[2] An application for special leave to appeal from the Court of Appeal's decision was dismissed.[3]
[1] Ogbonna v Qantas Airways Ltd [2018] WASC 378.
[2] Ogbonna v Qantas Airways Ltd [2019] WASCA 146.
[3] Ogbonna v Qantas Airways Ltd [2020] HCASL 26.
The plaintiff has experienced difficulty in pleading his claims. In one of several interlocutory decisions delivered by Le Miere J (the judicial case manager at the time), his Honour said:[4]
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.
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.
[4] Ogbonna v Qantas Airways Ltd[No 3] [2021] WASC 94 [3] - [4] (Le Miere J).
The plaintiff filed and served a substituted statement of claim on 22 April 2021 and on 28 April 2021 applied for leave to bring a summary judgment application against the defendants but the application was not pressed. On 3 June 2021 the defendants filed their defence and on 17 June 2021 the plaintiff filed a reply.
On 1 July 2022 the plaintiff filed an amended statement of claim. In addition to some minor textual amendments, the amended statement of claim included a claim for aggravated damages in respect of the defamation claims.
The hearing of the applications was listed for 5 December 2022 but that hearing was adjourned at the plaintiff's request to 31 January 2023 on the basis that he was unwell. Subsequently, the plaintiff attempted to issue four subpoenas to compel the attendance of persons to give oral evidence at the hearing. The persons to whom the plaintiff wished to subpoena were:
(a)Ms Julia Sutherland, the partner at the defendants' solicitors who has the conduct of the proceedings on the defendants' behalf and who is the deponent of two affidavits sworn in support of the application for security for costs;
(b)Ms Jessica Farah, an in-house counsel employed by the first defendant, and the deponent of the affidavit verifying the defendants' list of discovered documents and an affidavit sworn in opposition to the inspection application;
(c)Mr Stephen Woodbury, a partner at the defendants' solicitors who is the deponent of an affidavit relied on by the defendants in support of their application for an order that the plaintiff should only communicate with them in writing; and
(d)Dr Barker.
A directions hearing was listed to take place on 22 December 2022 to enable the plaintiff to raise any issues regarding the subpoenas he wished to have issued and any other matters of an interlocutory nature concerning the applications listed for hearing on 31 January 2023. Notice of the hearing was given to the plaintiff by email sent on 15 December 2022 and the opportunity to attend the hearing by telephone was extended to the plaintiff. The plaintiff left a message with court staff to say that he was unavailable and would not be attending the hearing.

Part 3 - Outline of the plaintiff's claims and the defences

In the paragraphs that follow I outline the essential nature of the plaintiff's claims as pleaded in his amended substituted statement of claim filed on 1 July 2022.
The plaintiff alleges that he was employed by the second defendant as a baggage handler at Perth Airport from March 2015 to April 2016. The plaintiff alleges that the second defendant breached the terms of its employment contract with him by failing to pay outstanding wages and other employment entitlements amounting to $15,482.42.[5]
[5] Amended substituted statement of claim filed 1 July 2022 pars 1 - 15.
The plaintiff alleges that although he resigned from his employment with the second defendant, the termination of his employment should be regarded in law as a constructive dismissal brought about by various breaches by the second defendant of the obligations owed by it to the plaintiff. In particular, the plaintiff alleges the second defendant failed to provide a working environment free from 'harassment, bullying, hazards and risks that conforms to Australian workplace health and safety standards'.[6] Relying on these allegations the plaintiff seeks declarations to the general effect that he was constructively dismissed, and general damages of $80,000.[7]
[6] Amended substituted statement of claim filed 1 July 2022 par 18(b).
[7] Amended substituted statement of claim filed 1 July 2022 pars 16 - 31.
In summary there is no dispute about the fact the plaintiff was employed by the second defendant but the defendants dispute the date on which the employment came to an end and the circumstances leading up to the termination.[8]
[8] Defence filed 3 June 2021 pars 1 - 40.
The plaintiff alleges that he was 'constantly bullied, harassed and disparaged'.[9] The plaintiff alleges that on 2 September 2015 he was assaulted by a co-worker resulting in injuries to the right side of his body. The plaintiff alleges that notwithstanding his complaints, in breach of the duty of care owed to him, the second defendant failed to prevent the bullying and harassment. The plaintiff claims general damages of $10,000.[10]
[9] Amended substituted statement of claim filed 1 July 2022 par 32.
[10] Amended substituted statement of claim filed 1 July 2022 pars 32 - 40.
Separately the plaintiff alleges that the second defendant is vicariously liable for the assault on him by the co-worker on 2 September 2015 and claims general damages of $30,000.[11]
[11] Amended substituted statement of claim filed 1 July 2022 pars 41 - 48.
The defendants dispute the material factual allegations on which the plaintiff's claims that he was bullied, harassed and assaulted are based.[12]
[12] Defence filed 3 June 2021 pars 41 - 48.
The plaintiff alleges that he was defamed by statements made about him in a letter dated 21 September 2015 written by an employee of the second defendant to Dr Barker, a consultant psychiatrist, for the purposes of obtaining an opinion essentially directed to the plaintiff's ability to perform the duties he was required to perform by reason of his employment. The plaintiff alleges that the second defendant is vicariously liable for the defamatory statements. He claims general damages for non-economic loss of $389,000 and aggravated damages of $50,000.[13]
[13] Amended substituted statement of claim filed 1 July 2022 pars 49 - 60.
The defendants admit the statements of which the plaintiff complains were published to Dr Barker and that the statements concerned the plaintiff. The defendants deny the imputations relied on by the plaintiff. Additionally, the defendants plead the defences of common law and statutory qualified privilege and the statutory defence of triviality.[14]
[14] Defence filed 3 June 2021 pars 49 - 60.
In his reply the plaintiff joins issue with the defences raised, specifically, in reply to the qualified privilege defences, the plaintiff alleges that the statements were actuated by malice.[15]
[15] Reply filed 17 June 2021 pars 49 - 60.
The plaintiff alleges that he was defamed by statements made to him orally by Mr Robert Shannon, an employee of the second defendant, in the presence of other employees. The effect of the statements was that the employee had been told by a security guard that the plaintiff had made a 'security threat'. The plaintiff alleges that the second defendant is vicariously liable for the defamatory statement and claims general damages for non-economic loss of $389,000 and aggravated damages of $50,000.[16]
[16] Amended substituted statement of claim filed 1 July 2022 pars 73 - 84.
The defendants say Mr Shannon was employed by the first defendant at the material time and otherwise dispute all the material matters relied on by the plaintiff in support of this claim.[17]
[17] Defence filed 3 June 2021 pars 73 - 84.
The plaintiff alleges that he was defamed by the repetition of the statement referred to in the preceding paragraph in a letter dated 2 December 2015 written by an employee of the first defendant to Dr Barker. The plaintiff alleges that the first defendant is vicariously liable for the defamatory statement and claims general damages for non-economic loss of $389,000 and aggravated damages of $50,000.[18]
[18] Amened substituted statement of claim filed 1 July 2022 pars 61 - 72.
The defences to this claim and the plaintiff's reply to those defences essentially replicate the defences and points raised in reply to the claim made by the plaintiff in respect of the statements contained in the referral letter of 15 September 2015.[19]
[19] Defence filed 3 June 2021 pars 61 - 72; reply filed 17 June 2021 pars 61 - 72.
The plaintiff alleges that he was defamed on 10 September 2015 by a statement made to him by an unidentified employee of the second defendant in the presence of other employees of the second defendant that were also unidentified. The plaintiff alleges that one employee said the word 'rat' 'directly at [the plaintiff] as he passed by'.[20] The plaintiff alleges that he was defamed on 13 September 2015 by a statement made to him by an unidentifiable employee of the second defendant in the presence of other employees of the second defendant. The plaintiff alleges that one employee said the words 'thief on the loose directly at [the plaintiff] as he passed by'.[21] The plaintiff alleges that the second defendant is vicariously liable for the defamatory statements and claims general damages for non-economic loss and aggravated damages in the aggregate sums of $720,000 and $127,517.58 respectively.[22]
[20] Amened substituted statement of claim filed 1 July 2022 par 89(a).
[21] Amened substituted statement of claim filed 1 July 2022 par 89(b).
[22] Amened substituted statement of claim filed 1 July 2022 pars 85 - 96.
The defendants dispute all of the allegations on which the claims of defamatory statements by unidentified employees of the second defendant are made.[23]
[23] Defence filed 3 June 2021 pars 85 - 96.

Part 4 - Application for judgment on admissions

The application and the evidence

By chamber summons filed on 1 December 2022 and amended on 23 January 2023, the plaintiff sought judgment and other forms of relief in respect of his defamation claims. The application was supported by an affidavit sworn by the plaintiff on 1 December 2022. The annexures to the plaintiff's affidavit included a document entitled 'notice to admit facts' served by the plaintiff on the defendants' solicitors on 2 November 2022. That notice set out various facts upon which the plaintiff based his defamation claims. In addition, the notice included many argumentative contentions. In particular, the plaintiff included in the notice many contentions regarding the defences relied on by the defendants, which are not factual matters properly the subject of a notice to admit facts but are submissions as to why the defences lack merit.
On 2 December 2022 the defendants' solicitors served a response to the plaintiff's notice to admit facts in which they recorded that they did not agree that all the matters referred to in the plaintiff's notice were proper requests to admit facts but, subject to that qualification, admitted certain matters and did not admit others.
By a minute of orders filed 30 January 2023 and amended on 31 January 2023 the plaintiff sought in effect to amend the basis of his application by relying on a notice to admit facts served on 23 January 2023,[24] rather than the notice to admit that had been served on 2 November 2022. The plaintiff withdrew the earlier notice to admit facts. For reasons that will become apparent, it is unnecessary to describe the content of either of the notices served by the plaintiff in further detail.
[24] Affidavit of Celeste Ifeanyl Ceefyne Ogbonna sworn 31 January 2023, annexure CICO-16.
On 30 January 2023 the defendants filed a response to the notice served on 23 January 2023. Once again, the defendants recorded that they did not agree that all the matters referred to in the plaintiff's notice were proper requests to admit facts but subject to that qualification admitted certain matters and did not admit others. For the plaintiff the final paragraph of the defendants' response assumed critical importance. In that paragraph the defendants stated:[25]
To avoid any doubt, the Defendants do not admit any of the headings in the Notice.

Outline of the opposing arguments

[25] Defendants' response to plaintiff's notice to admit facts filed 30 January 2023 par 42.

The plaintiff's application as originally formulated was based on the contention that the defendants were required to respond to his notice to admit facts within 14 days. He contended that because the defendants did not respond to the notice by 16 November 2022 disputing the matters set out in the notice they were deemed to have admitted those matters.[26]
[26] Affidavit of Celeste Ifeanyl Ceefyne Ogbonna in support of application for judgment sworn 1 December 2022 pars 10 and 11.

Following the service of the plaintiff's notice to admit facts dated 23 January 2023 and the change in the basis upon which the plaintiff pressed his application for judgment, the plaintiff contended that the defendants were obliged to respond to the notice to admit facts within seven days. This contention was based on the plaintiff's understanding of the effect of O 66 r 3(2) in the Rules of the Supreme Court 1971 (WA) (RSC). In a written submission filed by the plaintiff on 26 January 2023 the plaintiff stated he sought judgment:[27]
[I]n respect of the potential deemed admission on the Notice to Admit Facts filed and served on the Defendants on 23 January 2023 within the prescribed period of seven days pursuant to Order 66 rule 3(2) of the Rules of the Supreme Court 1971 (WA). (emphasis added)
[27] Plaintiff's outline of submissions in support of the application for judgment filed 26 January 2023 par 12.
In oral submissions the plaintiff contended that the defendants' response to his notice to admit facts of 23 January 2023 was 'fraudulent' and invalid.[28] The plaintiff's argued that it was the defendants' non-admission of the headings in his notice to admit facts that caused the response to be invalid.[29]
[28] ts 225.
[29] ts 230.
The defendants' primary contentions were as follows:[30]
First, there is no time limit in Order 30 of the Rules of the Supreme Court 1971 (WA) for a response to a notice to admit facts.
Secondly, there was no order imposing any time limit to respond.
Thirdly, the Plaintiff could not unilaterally impose a time limit in which to respond when that was not provided for by the rules or any order of the Court.
Fourthly, in any case, the Defendants' solicitors emailed the Plaintiff on 16 November 2022, making clear that the Defendants did not agree to the 14-day time limit the Plaintiff sought to impose: see CICO-6 to the Plaintiff's affidavit sworn 1 December 2022.
Fifthly, under Order 30 a failure to respond to a notice to admit facts does not give rise to deemed admissions.
Sixthly, as a result, there were no deemed admissions and cannot be any judgment based on any deemed admissions.

The provisions of the RSC relied on by the plaintiff

[30] Defendants' outline of submissions in response to the plaintiff's application regarding his notice to admit facts filed 24 January 2023 pars 9 - 14.

For the purposes of the application based on his notice to admit facts served on 23 January 2023 the plaintiff relies on O 30 r 1 and r 2 and O 66 r 3(2) of the RSC. Given the nature of the plaintiff's application it is necessary to set out the full text of O 30 r 1 - r 3 inclusive and O 66 r 3(2).
Order 30 r 1 - r 3 state:
1.Admission of other party's case
Without prejudice to Order 20 rule 14 any party to a cause or matter may give notice by his pleading or otherwise in writing that he admits the truth of the whole or any part of the case of any other party.
2.Notice to admit facts
(1)A party to a cause or matter may by notice in writing at any time not later than 7 days before the day for which notice of trial has been given or which has otherwise been appointed for trial serve on any other party a notice requiring him to admit, for the purpose of that cause or matter only, a fact or facts specified in the notice.
(2)Any admission made in pursuance of a notice to admit facts shall not be used against the party by whom it was made in any cause or matter other than the cause or matter for the purpose of which it was made, or in favour of any person other than the person by whom the notice was given.
(3)The Court may at any time allow a party to amend or withdraw an admission made under this rule on such terms as may be just.
3Judgment on admissions
(1)Where admissions of fact have been made on the pleadings or otherwise, any party may at any stage of a cause or matter apply to the Court for such judgment or order as upon such admissions he may be entitled to, without waiting for the determination of any other question between the parties, and the Court may on such application make such order or give such judgment as the Court thinks just.
(2)An application under this rule may be made on motion or by summons.
Order 66 r 3(2) provides:
If a party on whom a notice to admit facts is served under Order 30 rule 2, refuses or neglects to admit the facts within 7 days after service on him of the notice or such longer time as may be allowed by the Court, the costs of proving the facts shall be paid by him, unless the Court otherwise orders.

Consideration and disposition

The plaintiff's application was fundamentally misconceived. First, as the defendants contended and is plain from the text of the order there is no time limit specified in O 30 for a response to a notice to admit facts. Order 66 r 3(2) does not impose such a time limit. It does no more than provide that a party who does not admit facts within seven days of a notice to admit those facts being served will be liable for the costs of proving those facts unless the court otherwise orders. Secondly, and in any event, the defendants responded to the plaintiff's notice to admit facts served on 23 January 2023 on 30 January 2023. The plaintiff's contention that the defendants' response of 30 January 2023 was rendered 'fraudulent' and invalid by reason of par 42 patently has no merit and requires no further comment. The plaintiff's application was not supported by any legal principle.

Part 5 - Plaintiff's application for inspection of documents over which the defendants claim legal professional privilege

The application and the evidence

The plaintiff's minute of proposed orders filed on 18 August 2022 did not identify the particular documents the plaintiff wishes to inspect. These documents were identified by the plaintiff in the affidavit sworn by him on 18 August 2022. Relevantly, the plaintiff deposed:[31]
[31] Affidavit of Celeste Ifeanyl Ceefyne Ogbonna in support of application for release of specific discovered documents sworn 18 August 2022 pars 3 - 13.
3.Legal professional privilege will only apply to works performed by in-house counsels truly acting in their legal capacity, as independent legal advisers and satisfactorily independent from their organisations and giving advice and not merely participating in correspondences with other employees (such as in email chains).
4.Where legal advice was given by an in-house lawyer, it must be shown that the said documents were brought into existence in the course of the execution of the lawyer's professional role not otherwise.
5.Some of the documents in my possession have similar headings to certain documents that the Defendants are claiming privilege over and this is inconsistent with the confidentiality that privilege is intended to protect in such documents.
. . .
8.Count. 501/Document ID: QAL.001.001.1419 dated 22/10/2015 was sent by Mr Brett Hardy to Mr Glen Barron, Union Organiser, Transport Workers Union Western Australia via [email protected] and a host of other people with the title:, "RE: Celestine Ogbonna."
9.Count. 550/Document ID: QAL.001.001.1522 dated 22/10/2015 was sent by Mr Brett Hardy to Mr Glen Barron, Union Organiser, Transport Workers Union Western Australia via [email protected] and a host of other people, with title: "RE: Celestine Ogbonna"
10.Count. 597 Document ID: QAL.001.001.1667 dated 27/10/2015; Count. 598 Document ID: QAL.001.001.1670 dated 20/01/2021; and Count. 599 Document ID: QAL.001.001.1671 dated 29/09/2015 respectively were sent by Ms Jeannine Whitmore to Ms Helen Murphy, of the Catholic Archdiocese of Sydney's Parish via [email protected] with the title: "New matter-Celestine Ogbonna-Airline Service Operator-QGS"
11.Some of the following persons' Ms Jeannine Whitmore; Mr Kayne Meehan, Mr Brett Hardy, Ms Amanda Ngo, Ms Jessica Farah, Mr Richard Yeo, Ms Jo Woodcock are not in-house counsels for legal professional privilege purposes and therefore do not have an active legal practitioner's licence.
12.The title of the various privileged documents highlighted shows that it was not for the purpose of advice but rather correspondence between the Defendants' senior management team members and in certain cases, third parties were copied in.
13.Count. 893 Document ID: QAL.001.001.2556 dated 17/11/2015 was sent by Dr Russel Brown to SHR MFD Health Services via [email protected] with title: "FW: Clestine-proposed talking points for today's meeting". There is no privilege in this correspondence.
It appears that in par 10 of his affidavit the plaintiff referred to the document bearing the 'Document ID QAL.001.001.1522' as 'Count 597' when it should have been referred to as 'Count 596'. Similar referencing errors were made in respect of the documents bearing the Document IDs QAL.001.001.1670 and QAL 001.001.1671 which should have been referred to as 'Count 597' (not 598) and 'Count 598' (not 599) respectively.
As mentioned earlier, the affidavit verifying the defendants' list of documents was sworn by Ms Jessica Farah, a solicitor who is employed by the first defendant as 'Head of Industrial Relations - Group Litigation'.[32] In that affidavit claims for legal professional privilege were made in respect of each of the documents of which the plaintiff now seeks inspection.
[32] Affidavit of Jessica Kate Farah sworn 14 June 2022.
Each document in respect of which a claim for legal professional privilege was made was described individually in the list of documents.
(a)Document ID QAL.001.001.1419 (count 501) is an email sent by Mr Brett Hardy. Mr Hardy and eight of the addressees have 'Qantas' email addresses and I infer that Mr Hardy and these addressees are employees of the first or second defendants. The addressees included Ms Farah. The remaining addressee is Mr Glen Barron who appears to be an official of a Trade Union.
(b)Document ID QAL.001.001.1522 (count 550) is also an email sent by Mr Hardy to the same persons to whom the email bearing the description Document ID QAL.001.001.1419 was sent.
(c)Document ID QAL.001.001.1667 is an email from Ms Jeannine Whitmore, an employee of the first or second defendant to Ms Anna Reoch at a 'Qantas' email address and to Ms Helen Murphy at the email address '[email protected]'.
(d)Document ID QAL.001.001.2556 is an email sent by Dr Russell Brown, (I infer Dr Brown was an employee of the first or second defendant because he used a 'Qantas' email address), to the email address ' [email protected]'.
In the defendants' list of documents the privilege claims were expressed as follows:[33]
The Defendants object to producing these documents on the grounds of legal professional privilege.
Legal professional privilege is claimed over the documents on the ground that their production would reveal a confidential communication passing between any one or more of:
(a) the Defendants, their employees or agents; and
(b) their solicitors or counsel, including internal counsel,
prepared for the dominant purpose of giving or receiving legal advice or related to anticipated or actual legal proceedings.
[33] Affidavit of Jessica Kate Farrar sworn 14 June 2022, attachment A (list of documents - part 1B).
In support of their opposition to the plaintiff's application the defendants rely on an affidavit sworn on 14 September 2022 by Ms Farah in which she deposed as follows:[34]
[34] Affidavit of Jessica Kate Farrar sworn 14 September 2022 pars 8 - 11.
8.I refer to paragraph 11 of the Plaintiffs Affidavit. I am employed by the First Defendant in my capacity as a solicitor and currently hold and held, at all relevant times, a practising certificate, which is paid for by the First Defendant. In paragraph 11, the Plaintiff refers to other employees of the Defendants. The Defendants do not seek to maintain a claim of legal professional privilege in relation to any document because of the involvement of those employees in communications.
9.I refer to paragraph 3 of the Plaintiffs Affidavit. In 2015 and 2016, I was employed in the role of EEO Manager. At this time, I maintained my practising certificate. My role included acting as a legal advisor to the Qantas Group in relation to individual employment matters. In relation to the Plaintiff in particular, I provided the Defendants with legal advice about matters concerning the Plaintiff during his employment and in connection with the cessation of his employment.
10.I refer to paragraphs 8 - 10 and 13 of the Plaintiffs Affidavit and have set out below at paragraph 12 the basis on which legal professional privilege has been claimed by the Defendants in respect of each document referred to by the Plaintiff in those paragraphs.
11.In respect of paragraph 10 of the Plaintiffs Affidavit:
(a)document number QAL.001.001.1667 [count 596] is an email sent from Ms Jeannine Whitmore to Ms Anna Reoch, who was a lawyer employed by Ashurst on secondment to the First Defendant and Ms Helen Murphy at [email protected];
(b)I am informed by Ms Jeannine Whitmore and believe that this email was sent in error to Ms Helen Murphy and was, instead, intended to be sent to Ms Helen McKenzie, then partner, of Ashurst;
(c)I am also informed by Ms Jeannine Whitmore and believe that Ms Jeannine Whitmore sent Ms Helen Murphy an email after sending document number QAL.001.001.1667, requesting that Ms Helen Murphy ignore and delete document number QAL.001.001.1667. Annexed and marked "JKF-4" is a copy of the email from Ms Jeannine Whitmore to Ms Helen Murphy dated 27 October 2015. This document was not included in the Defendants' list of discovered documents on the basis that it was not relevant.
At par 12 of her affidavit sworn on 14 September 2022, Ms Farah set out in tabular form 'the ground of legal professional privilege and in one case the ground of relevance' forming the basis upon which the defendants' objections to the plaintiff inspecting the documents in question. The grounds relevant to the documents which the plaintiff wishes to inspect were as follows:[35]
Count 501 - Confidential communication from representatives of the Defendants to internal legal counsel for the dominant purpose of receiving legal advice.
Count 550 - Confidential communication from representatives of the Defendants to internal legal counsel for the dominant purpose of receiving legal advice.
Count 596 - Confidential communication from representatives of the Defendants to the Defendants' solicitors for the dominant purpose of receiving legal advice.
Count 597 - Attachment to above communication (count 596).
Count 598 - Attachment to above communication (count 596).
Count 893 - Confidential communication recording legal advice.
[35] Affidavit of Jessica Kate Farrar sworn 14 September 2022 par 12.
Ms Farah deposed that to the extent to which she sent or received any of the communications referred to in the table referred to in the preceding paragraph she sent or received those communications so that she could provide legal advice or consider any legal advice which had been provided.[36]

Outline of the opposing arguments

[36] Affidavit of Jessica Kate Farrar sworn 14 September 2022 par 14.

In outline the plaintiff's contentions were to the following effect:
(a)The defendants had not established that their internal legal lawyers are independent. They are employees of the defendants and are 'potential defendants'. Thus, the claim for legal professional privilege in respect of communications with them should not be upheld.[37]
(b)Some of the documents over which legal professional privilege is claimed have the same headings as documents for which no privilege is claimed.[38]
(c)Some of the emails over which legal professional privilege is claimed were sent to 'many recipients, some of which were outsiders such as Mr Glen Barton'. Disclosure of otherwise privileged documents to persons not obliged to maintain confidence will amount to a waiver of legal professional privilege.[39]
(d)Simply sending a communication to a lawyer does not generate legal professional privilege rather the fundamental question is what was the intended use (or uses) for which the communication was brought into existence.[40]
(e)Factual investigations, 'absent that investigation being commissioned by counsel at the outset', does not establish legal professional privilege.[41]
(f)The defendants have pleaded reliance on some of the documents over which privilege is claimed and that reliance necessitates disclosure of the documents and any other documents incorporated by reference in them.[42]
[37] Plaintiff's outline of submissions filed 29 September 2022 pars 18 - 24 and 37.
[38] Plaintiff's outline of submissions filed 29 September 2022 pars 25 and 39.
[39] Plaintiff's outline of submissions filed 29 September 2022 pars 25 and 36.
[40] Plaintiff's outline of submissions filed 29 September 2022 par 26.
[41] Plaintiff's outline of submissions filed 29 September 2022 par 27.
[42] Plaintiff's outline of submissions filed 29 September 2022 par 34.
In outline the defendants' contentions were to the following effect:
(a)The plaintiff has not adduced evidence that the legal professional privilege claims are unfounded or mistaken. Ms Farah's affidavit of 14 September 2022 identifies the basis for the claim for legal professional privilege in relation to each communication over which privilege is claimed.[43]
(b)Ms Farah was a certificated legal practitioner involved in the receiving or providing of legal advice to the defendants and that is the basis upon which legal professional privilege is claimed in respect of communications with her.[44]
(c)That documents over which no privilege is claimed have similar headings to documents over which legal professional privilege is claimed does not establish that the privilege claims are unfounded.[45]
(d)That one communication was sent to a person outside the defendants' organisation by mistake is not sufficient to waive legal professional privilege.[46]
(e)The defendants have not relied on any of the documents over which legal professional privilege is claimed in its pleaded case.[47]
(f)That communications were sent to a union official and a medical doctor 'does not necessarily mean that the relevant communications are not protected by legal professional privilege'.[48]
(g)The most efficient way of resolving the application is for the court to inspect the documents over which legal professional privilege is claimed.[49]

Relevant legal principles

[43] Defendants' outline of submissions filed 12 October 2022 pars 16 - 18.

[44] Defendants' outline of submissions filed 12 October 2022 pars 20 - 25.

[45] Defendants' outline of submissions filed 12 October 2022 pars 26 - 29.

[46] Defendants' outline of submissions filed 12 October 2022 pars 30 - 33.

[47] Defendants' outline of submissions filed 12 October 2022 par 35.

[48] Defendants' outline of submissions filed 12 October 2022 pars 36 - 38.

[49] Defendants' outline of submissions filed 12 October 2022 pars 44 - 54.

There was no material dispute between the parties as to the principles to be applied.
Order 26 of the RSC governs the requirements and procedures for discovery and inspection of documents.
Relevantly, O 26 r 4(2) of the RSC provides that '[i]f it is claimed that any documents are privileged from production, the claim must be made in the list of documents with a sufficient statement of the grounds of the privilege'.
Order 26 r 12 of the RSC allows a party, upon receiving a list of documents supplied on discovery which has been claimed as subject to privilege by the other party, to traverse the claims to privilege by adducing evidence either that the claim to privilege is unfounded or mistaken.

The onus of establishing privilege rests on those claiming it.[50] However, whilst the ultimate legal onus remains upon the party claiming privilege, under O 26 r 12(1) an evidential onus is cast upon the party seeking inspection if the claim for privilege is 'apparently proper'.[51]
[50] Woodings v WA Glendinning & Associates Pty Ltd [2019] WASC 54 [28] (Smith J).
[51] CTC Resources NL v Australian Stock Exchange Ltd [2000] WASCA 19; (2000) 22 WAR 48 [33] - [34] (Owen & Steytler JJ); applied in Lampson (Australia) Pty Ltd v Fortescue Metals Group Ltd [No 2] [2010] WASC 217 [32] (Murphy JA). See also CMA Assets Pty Ltd v John Holland Pty Ltd[No 2] [2012] WASC 126 [23] - [24] (Allanson J).
The plaintiff, in discharging this onus, is not restricted to reliance on its own affidavits. It may rely on all of the evidence that is before the court.[52]
[52] Carey v Korda [2012] WASCA 228; (2012) 45 WAR 181 [70] (Murphy JA), [1] (Martin CJ), [2] (Newnes JA); CTC Resources NL v Australian Stock Exchange Ltd [38] - [40] (Owen & Steytler JJ).
In Re Forge Group Construction Pty Ltd (in liq); Ex parte Jones [No 2],[53] I outlined the relevant principles by reference to what had been said by McLure P in AW v Rayney.[54] It is convenient to repeat what I said in Re Forge Group Construction Pty Ltd (in liq); Ex parte Jones [No 2]:[55]
[53] Re Forge Group Construction Pty Ltd (in liq); Ex parte Jones [No 2] [2016] WASC 87.
[54] AW v Rayney [2010] WASCA 161 [17] - [20], [23] - [25] (McLure P).
[55] Re Forge Group Construction Pty Ltd (in liq); Ex parte Jones [No 2] [20] - [22].
There was no dispute between the parties as to the relevant principles in relation to legal professional privilege. They were summarised by McLure P in AW v Rayney [2010] WASCA 161 at [17] - [20] and [23] - [25]:
Advice privilege attaches to confidential communications made for the dominant purpose of obtaining or giving legal advice. The traditional formulation of litigation privilege is that it applies to confidential communications passing between a client, the client's legal adviser and third parties for the dominant purpose of use in litigation which is either pending or in contemplation. There must be a real prospect of litigation as distinct from a mere possibility: Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority [2002] VSCA 59.
Legal professional privilege extends to material prepared for the dominant purpose of communication to the legal adviser even if the communication has yet to occur: Grant v Downs (1976) 135 CLR 674, 690.
Legal professional privilege ordinarily protects communications rather than documents; the test for privilege is anchored to the purpose for which the document was brought into existence: Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501. Thus, legal professional privilege can attach to copies of non-privileged documents if the purpose of bringing the copy into existence satisfies the dominant purpose test: Propend (507) (Brennan CJ), (544) (Gaudron J), (553 - 554) (McHugh J), (571 - 572) (Gummow J) and (587) (Kirby J).
There is a qualification to the general rule. Legal professional privilege also protects from disclosure documents that record legal work carried out by the lawyer (such as research and file notes) for the benefit of the client whether or not they are, or are intended to be, provided to the client: Propend (550) (McHugh J); Trade Practices Commission v Sterling (1979) 36 FLR 244, 245-246 (Lockhart J); Dalleagles Pty Ltd v Australian Securities Commission (1991) 4 WAR 325, 333 - 334 (Anderson J).
…
The party resisting disclosure carries the onus of proving that legal professional privilege applies: Grant v Downs (689).
A dominant purpose is one that predominates over other purposes; it is the prevailing or paramount purpose: Pratt Holdings Pty Ltd v Cmr of Taxation (2004) 136 FCR 357 [35]. Where the question involves a document, the relevant purpose is the purpose for bringing into existence the document containing or comprising part of the confidential communications: Grant v Downs (688, 694).
The purpose for which a communication is undertaken or a document is brought into existence is a question of fact that must be determined objectively; evidence of the intention of the person who made, or caused to be made, the document is not conclusive: Commissioner of Taxation v Pratt Holdings Pty Ltd (2005) 225 ALR 266 [30].
That a document was produced with other purposes in mind does not preclude it being accorded the privilege so long as the dominant purpose was the obtaining or giving of legal advice or use in pending or contemplated litigation. A document is not privileged from production where there are two purposes of equal weight and neither is dominant in the relevant sense: AWB Ltd v Cole [2006] FCA 571; (2006) 152 FCR 382 [106] (Young J).
Determining what is the dominant purpose is a question of fact to be resolved objectively with regard to the evidence, the nature of the document and the parties' submissions, per Young J in AWB at [110].
For the purposes of this application, it is necessary to address the issue of multi-addressee emails. In Tec Hedland Pty Ltd v The Pilbara Infrastructure Pty Ltd,[56] Hill J cited with approval the observations of Hickinbottom LJ in The Civil Aviation Authority v The Queen (on the Application of Jet2.com Ltd),[57] on the approach to be taken to multi-addressee emails. His Lordship said:[58]
(ii)In respect of a single, multi-addressee email sent simultaneously to various individuals for their advice/comments, including a lawyer for his input, the purpose(s) of the communication need to be identified. In this exercise, the wide scope of "legal advice" (including the giving of advice in a commercial context through a lawyer's eyes) and the concept of "continuum of communications" must be taken fully into account. If the dominant purpose of the communication is, in substance, to settle the instructions to the lawyer then, subject to the principle set out in Three Rivers (No 5) (see paragraphs 47 and following above), that communication will be covered by LAP. That will be so even if that communication is sent to the lawyer himself or herself, by way of information; or if it is part of a rolling series of communications with the dominant purpose of instructing the lawyer. However, if the dominant purpose is to obtain the commercial views of the non-lawyer addressees, then it will not be privileged, even if a subsidiary purpose is simultaneously to obtain legal advice from the lawyer addressee(s).
(iii)The response from the lawyer, if it contains legal advice, will almost certainly be privileged, even if it is copied to more than one addressee …
(iv)[A]s to whether multi-addressee communications should be considered as separate bilateral communications between the sender and each recipient, or whether they should be considered as a whole. My preferred view is that they should be considered as separate communications between the sender and each recipient …
(vi)Where there is a multi-addressee email seeking both legal advice and non-legal (e.g. commercial) advice or input, if regarded as separate communications, those to and from the lawyer will be privileged: otherwise, they will not be privileged, unless the real (dominant) purpose of a specific email to/from non-lawyers is that of instructing the lawyer.
[56] Tec Hedland Pty Ltd v The Pilbara Infrastructure Pty Ltd [2020] WASC 364.
[57] The Civil Aviation Authority v The Queen (on the Application of Jet2.com Ltd) [2020] EWCA Civ 35.
[58] The Civil Aviation Authority v The Queen (on the Application of Jet2.com Ltd) [100] (Hickinbottom LJ).
Hill J noted that there had been some debate before the Court of Appeal in The Civil Aviation Authority v The Queen (on the Application of Jet2.com Ltd) as to whether multi-addressee communication should be considered as separate bilateral communications between the sender and each recipient or considered as a whole, but considered the better view was that they should be considered as separate communications. Her Honour went on to hold:[59]
In argument before me, senior counsel for both parties accepted that this was the correct approach for considering multi-addressee emails. However, senior counsel for the defendant emphasised that the question for determination was the dominant purpose of the communication and that it should not be assumed that there are multiple purposes for an email just because there are multiple recipients. Ultimately, it is a question of fact.
I do not believe this question or this authority has been specifically considered by a court in Australia to date. I consider the approach summarised [by the English Court of Appeal] is the correct approach to multi-addressee emails. This is because there may be different purposes in sending emails to each of the recipients of a multi-addressee email and it is necessary to consider which, if any, is dominant.
Evidence in support of the claim for legal professional privilege should be focused and specific. Where possible, the evidence should explain the thought processes behind, or the nature and purpose of advice being sought in respect of each particular document. (footnotes omitted)
[59] Tec Hedland Pty Ltd v The Pilbara Infrastructure Pty Ltd [28] - [30] (Hill J).
Where a document is otherwise subject to a claim for legal professional privilege, the privilege may be lost by waiver.
Waiver occurs where there is conduct which is inconsistent with the maintenance of the privilege so as to be unfair.[60]
[60] Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 [28] - [29] (Gleeson CJ, Gaudron, Gummow & Callinan JJ).
The test for waiver is an objective one. The law may impute waiver even if this was not intended by the party claiming the privilege. The intention will be imputed where the actions of a party are 'plainly inconsistent with the maintenance of the confidentiality which the privilege is intended to protect'.[61]

Consideration and disposition

[61] Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management & Marketing Pty Ltd [2013] HCA 46; (2013) 250 CLR 303 [30] (French CJ, Kiefel, Bell, Gageler & Keane JJ).

Before considering each document I will deal with the plaintiff's contention to the effect that communications with Ms Farah do not attract legal profession privilege because she was not sufficiently independent or was not acting in the execution of her capacity as a legal practitioner. Ms Farah's evidence that, in 2015 she held a practising certificate and was employed in a role that included her acting as a legal advisor to the 'Qantas Group' in relation to employment matters, coupled with her evidence that the documents included in the table in her affidavit that were sent or received by her so that she could provide legal advice or consider any legal advice that had been provided, satisfies me that Ms Farah had the necessary degree of professional independence for communications with her to attract legal professional privilege.

Document IDs QAL.001.001.1419 (count 501) and QAL.001.001.1522 (count 550)

These documents may be considered together. They are emails sent on 22 October 2015 by Mr Hardy of Qantas to eight employees of the first or second defendants (including Ms Farah) and to Mr Barron. That the emails were sent to Mr Barron raises factual issues about whether they can properly be described as 'confidential communications' and whether the dominant purpose of the communications to Mr Barron, considered as separate bilateral communications between Mr Hardy and Mr Barron, was the obtaining of legal advice. The most efficient method of determining these issues is for the emails to be inspected by another judge of the General Division and arrangements will be made for the documents to be provided to the associate of another General Division judge to enable this to occur.

Document IDs QAL.001.001.1667 (count 596), QAL.001.001.1670 (count 597) and QAL 001.001.1671 (count 598)

Ms Farah's evidence at pars 11 and 12 of her affidavit sworn on 14 September 2022 establishes to my satisfaction that document QAL.001.001.1667 was an email sent on 27 October 2015 by an employee of the first or second defendant, Ms Whitmore, to Ms Anna Reoch, a solicitor from Ashursts on secondment to the first and second defendants for the dominant purpose of seeking legal advice and that documents QAL.001.001.1670 and QAL 001.001.1671 were attachments to that email. I am also satisfied that the email was sent in error to a third party, Ms Helen Murphy and that when the error was realised later on 27 October 2015, Ms Whitmore sent Ms Murphy an email asking her to ignore and delete the earlier email. I am satisfied that Ms Whitmore's email to Ms Reoch and the attachments are the subject of legal professional privilege and that there has been no waiver of that privilege. The accidental sending of the email to Ms Murphy was not plainly inconsistent with the maintenance of confidentiality which legal professional privilege is intended to protect.

Document ID QAL.001.001.2556 (count 893)

Privilege is claimed in respect of this document, an email sent by Dr Russell Brown, on the grounds that it records legal advice. In his written submissions the plaintiff asserts that 'there is no privilege in this correspondence' but his attack on privilege does not rise above assertion. I uphold the claim for privilege.

Part 6 - Application that the plaintiff communicate with the defendants' solicitors in writing

The application and the evidence

By a minute of orders filed 4 November 2022 the defendants applied for an order that:
1.From the date of this order, the Plaintiff communicate with the Defendants' solicitors solely in writing by way of email to [email protected]
2.The Plaintiff pay the Defendants' costs of the application.
The application was supported by affidavits sworn on 3 November and 2 December 2022 by Mr Stephen Woodbury, a partner in Ashurst, the defendants' solicitors.[62] In summary, Mr Woodbury's evidence was to the following effect:
[62] Affidavit of Stephen James Woodbury sworn 3 November 2022; supplementary affidavit of Stephen James Woodbury sworn 2 December 2022.
(a)He was the solicitor with conduct of the defence of the plaintiff's claim until conduct was assumed by Ms Sutherland in 2019.
(b)Ashurst maintains records of telephone calls made to the firm which identifies the telephone number from which each call is made.
(c)Based on the records of telephone calls he believes that on 30 June 2022 the plaintiff made 24 telephone calls to Ashurst intending to speak to Ms Sutherland.
(d)On 30 June 2022 at 3.53 pm Ms Sutherland sent the plaintiff an email which read as follows:
Dear Mr Ogbonna
CIV 2573 of 2016 - Ogbonna v Qantas Airways Ltd & Anor
I am aware that you have attempted to contact me this afternoon by phone. I am in meetings this afternoon and am unable to return your call.
I will be sending you a letter in relation to the objections you have raised concerning discovery.
Kind regards
Julia Sutherland
(e)The plaintiff responded to Ms Sutherland's email at 4.26 pm by an email that read as follows:
Dear Sutherland
I think you are disrespecting me at the moment. However if I was if I was one of the solicitor from one of the law firms you deal with, you would not ignore me or treat me with contempt for simply requesting for an information that pertains to my rights in this legal proceedings that is what is called racism. I have requested that you respond before the close of business today and I hope you do because currently I am sick and tired of the double standard that people perpetrate in society. I suppose you are seeking a reaction, you would not get that from me.
Kind regards
Celeste Ogbonna
(f)Ms Sutherland responded to the plaintiff's email by an email sent to him at 5.32 pm which read as follows:
Dear Mr Ogbonna
I have been in meetings for most of the day today and otherwise attending to urgent client work. I am sorry that I have not had the time to return your call. I am not disrespecting you.
We are shortly sending you proposed orders in relation to tomorrow's case management hearing. I hope that we will also soon be in a position to send you a letter that sets out Qantas' position in relation to the discovered documents. Before then, I do not have anything further that I can say to you about those matters.
I am aware that you have tried to call me many times today and that you have also called our reception several times. Could I please ask that you do not call our reception multiple times.
Yours sincerely
Julia Sutherland
(g)At a directions hearing held on 1 July 2022 counsel for the defendants requested that the plaintiff communicate with Ashurst in writing either by email or by letter, 'so there's no confusion about what the communications are about. There's no misunderstandings with [the plaintiff] about what he may intend in what he says or doesn't say'.[63] Shortly after this request I had an exchange with the plaintiff which culminated in the plaintiff promising that he would henceforth communicate with the defendants' solicitors in writing.[64]
[63] ts 208.
[64] ts 213 - 214.
(h)On 19 August 2022 Ashursts' national telephone switchboard received a call as a result of which the following email was sent to Ms Sutherland by a Client Services Coordinator:
From: National Switchboard
Sent: Friday, 19 August 2022 9:54 AM
To: Sutherland, Julia 68732
Cc:
Subject: Aggressive Caller
Hi Julia,
Sorry to be a bother, but I encountered a phone call (he didn't tell me his name but he is an African man) with a man who has been informing of a matter of yours and he has been very angry, aggressive abusive during this phone call.
He stated that he "will be pressing criminal charges" for a case of yours, for Qantas. He stated he will be pressing charges against yourself and the other party.
He's written to government, the courts and now moving onto the AFP etc.
I just thought I'd inform you and I just spoke with your PE as well on how to address this going on in the future. If you have any more instructions about this, please don't hesitate to let us know.
Thank you,
Client Services Coordinator
Ashurst
(i)On 14 October 2022 Ashurst sent a letter to the plaintiff pointing out that although at the directions hearing held on 1 July 2022 he had promised that he would communicate with Ashurst in writing he had continued to make telephone calls to the firm. In that letter Ashurst foreshadowed the present application.
(j)The plaintiff responded to the Ashurst letter by email sent to Ms Sutherland on 14 October 2022. The plaintiff stated that he did not consent to an order that he only communicate in writing and, among other matters stated, that any such order would violate his 'fundamental rights' and that Ms Sutherland was trying to engage in 'racism and white privilege'.
(k)On 14 October 2022 Ashurst's telephone switchboard received a call from the plaintiff and Ms Sutherland received an email about the call that read as follows:
Good Morning Julia
Thank you for your call.
Please see below exact conversation between myself and Caller:
Myself: Morning Ashurst, How can I help you?
Caller: Hi I would just like to speak to you about a Julia Sutherland who works in your Australian office.
Myself: Ok.
Caller: I know what she has done and I am not being threating but I will find her.
Myself: Ok.
Caller: Please pass the message on.
Myself: Ok
(He then hung up the call).
Kind Regards
(l)On 25 November 2022 the plaintiff sent an email to Ms Sutherland, Mr Woodbury, Ms Farah and others, (who I infer were members of the Ashurst partnership or executives of the defendants) which was copied to many other email addresses alleging professional misconduct against Ms Sutherland and another lawyer in Perth.

The plaintiff did not adduce any evidence in opposition to the application. In response to a question from me the plaintiff denied that he was the person who made the telephone call to the Ashursts' offices described in the email reproduced at [71(k)] above. As the defendants' application was not opposed by the plaintiff it is unnecessary for me to make a finding as to whether the plaintiff was the person who made the telephone call.
It is important, however, that I record that a statement such as that made in the telephone call - whoever made it - was sinister and calculated to be threatening. The making of a statement of that nature directed to a legal practitioner with conduct of proceedings before the court is conduct that this court must condemn in the strongest possible terms.

Outline of the defendant's contentions

In outline the defendants' contentions were to the following effect:
(a)The power to make the order sought is found in the court's power to make case management directions under O 4A r 2(1), r 2(2)(a), r 2(2)(b) and r 2(3) of the RSC, alternatively, the inherent jurisdiction of the court.
(b)The decisions in Murdock v Virgin Australia Airlines Pty Ltd,[65] and McGuirk v University of New South Wales,[66] though based on the statutory regimes governing the Federal Court and the Supreme Court of New South Wales respectively, provide support for the exercise of the powers conferred by O 4A in the manner sought by the defendants.
(c)The proposed order will facilitate the attainment of the objects referred to in O 1 r 4B(1) of the RSC, including the just determination of the litigation and the efficient and timely disposal of business.
(d)The proposed order does not set aside, revoke or suspend substantive rights of the parties to the litigation.
(e)The need for the parties to communicate arises from the litigation. The communication relates to procedural steps in the case. Communicating in writing will assist the parties.
(f)The inherent powers of the court are wide and dynamic. The inherent power of the court to control the conduct of the proceeding includes the power to make orders in relation to the manner in which the parties to litigation communicate with each other in relation to, and for the purpose of, that litigation. It should also be noted that the defendants do not presently seek orders restraining the plaintiff from communicating. The order sought simply relates to the manner in which the plaintiff may communicate with the defendants' solicitors.

The plaintiff's position

[65] Murdock v Virgin Australia Airlines Pty Ltd [2022] FCA 1074.

[66] McGuirk v University of New South Wales [2010] NSWCA 104.

In oral argument the plaintiff said, in effect, that he did not object to the requirement that his communications with the defendants' solicitors should be solely in writing but he did object to sending emails to a 'generic' email address of the kind specified by the defendants' solicitors.[67] The plaintiff explained why he communicated by telephone with the defendants' solicitors in the following terms:[68]
[J]ust put it this way, your Honour. So just simple. Grant the order. I will not communicate with them. I give you my word. I promise. You know why I communicate with them sometimes, because, you know, when I'm upset I let to get it out of my chest.

The RSC

[67] ts 256 - 257.

[68] ts 257.

Order 4A r 2(1) of the RSC states that:
A case management direction is any procedural direction that in the Court's opinion it is just to make in a case to facilitate the attainment of the objects referred to in Order 1 rule 4B(1)
Order 1 r 4B(1) of the RSC states that:
Actions, causes and matters in the Court will, to the extent that the resources of the Court permit, be managed and supervised in accordance with a system of positive case flow management with the objects of –
(a)promoting the just determination of litigation; and
(b)disposing efficiently of the business of the Court; and
(c)maximising the efficient use of available judicial and administrative resources; and
(d)facilitating the timely disposal of business; and
(e)ensuring the procedure applicable, and the costs of the procedure to the parties and the State, are proportionate to the value, importance and complexity of the subject matter in dispute; and
(f)that the procedure applicable, and the costs of the procedure to the parties, are proportionate to the financial position of each party.

Consideration and disposition

In Murdock v Virgin Australia Airlines Pty Ltd, Burley J considered whether s 23 of the Federal Court Act 1976 (Cth) (FCA) read with s 37M of the FCA and r 1.32 and r 1.35 of the Federal Court Rules 2011 (Cth) (FCR) gave the court power to make orders regulating how litigants in proceedings before the Federal Court communicated with each other.
Section 23 of the FCA provides:
Making of orders and issue of writs
The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court things appropriate.
Section 37M of the FCA, relevantly, provides:
The overarching purpose of civil practice and procedure provisions
(1)The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes:
(a)according to law; and
(b)as quickly, inexpensively and efficiently as possible.
(2)Without limiting the generality of subsection (1), the overarching purpose includes the following objectives:
(a)the just determination of all proceedings before the Court;
(b)the efficient use of the judicial and administrative resources available for the purposes of the Court;
(c)the efficient disposal of the Court's overall caseload;
(d)the disposal of all proceedings in a timely manner;
(e)the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
Rule 1.32 and r 1.35 of the FCR, relevantly, provide:
1.32The Court may make any order that the Court considers appropriate in the interests of justice.
1.35The Court may make an order that is inconsistent with these Rules and in that event the order will prevail.
Burley J held:[69]
When considered together with s 23 of the FCA Act, in my view these provisions confer upon the Court the power to give such directions and make such orders for the conduct of any proceedings to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. That power is not limited to the conduct of proceedings in court, and extends, where appropriate, to the making of orders regulating the manner, timing, content and authorship of communications sent between the parties to proceedings for the purpose of their conduct.
[69] Murdock v Virgin Australia Airlines Pty Ltd [28] (Burnley J).
Section 16(1)(d) of the Supreme Court Act 1935 (WA) confers power on this court in the following terms:
General jurisdiction
(1)Subject as otherwise provided in this Act, and to any other enactment in force in this State, the Supreme Court —
…
(d)shall be a court of equity, with power and authority within Western Australia and its dependencies —
(i)to administer justice, and to do, exercise, and perform all acts, matters, and things necessary for the due execution of such equitable jurisdiction as, at the commencement of the Supreme Court Ordinance 1861 5, the Lord Chancellor of England could or lawfully might have done within the realm of England in the exercise of the jurisdiction to him belonging; and
(ii)to appoint guardians and committees of the persons and estates of infants, lunatics, and persons of unsound mind according to the order and course observed in England, and for that purpose to inquire into, hear, and determine by inspection of the person the subject of inquiry, or by examination on oath or otherwise of the party in whose custody or charge such person is, or of any other person or persons, or by such other ways and means by which the truth may be best discovered, and to act in all such cases as fully and amply to all intents and purposes as the said Lord Chancellor or the grantee from the Crown of the persons and estates of infants, lunatics, and persons of unsound mind might lawfully have done at such date.
In Christmas Island Resort Pty Ltd v Geraldton Building Co Pty Ltd (No 5),[70] the Full Court held that s 16(1)(d) expressed the same concept as s 23 of the Supreme Court Act 1970 (NSW) that provides:[71]
The Court shall have all jurisdiction which may be necessary for the administration of justice in New South Wales.
[70] Christmas Island Resort Pty Ltd v Geraldton Building Co Pty Ltd (No 5) (1997) 18 WAR 334.
[71] Christmas Island Resort Pty Ltd v Geraldton Building Co Pty Ltd (No 5) (340 - 341) (Franklyn, Owen & Parker JJ).
Taken in combination, s 16(1)(d) of the Supreme Court Act and O 4A r 2(1) and O 1 r 4B(1) of the RSC confer powers on this court to make directions for the just and efficient conduct of proceedings that are as extensive as those conferred on the Federal Court by the provisions which Burley J considered in Murdock v Virgin Australia Airlines Pty Ltd.
I consider that the power to make directions extends to making directions regulating the manner in which the parties communicate with each other. Effective communication between parties is essential for the efficient conduct of litigation. Apart from anything else, effective communication reduces the potential for the parties to be distracted by false issues created by miscommunication.
I have had the opportunity of assessing the plaintiff's oral communication skills in the court room. I intend no disrespect to the plaintiff but it is apparent that when conducting this litigation he becomes so suffused with emotion that he both loses objectivity and resorts very quickly to making allegations of impropriety and misconduct that, to use an all too familiar expression, generate more heat than light. I am concerned that the plaintiff's ability to communicate orally with the defendants' lawyers is similarly compromised. I fear that unless an order of the nature sought by the defendants is made there would be a significant risk of misunderstandings and collateral disputes that would impede the just and efficient determination of these proceedings.
At the hearing of the application I inquired of the defendants' counsel whether the email address proposed in the defendants' minute of orders could be a personal email address as distinct from a generic one. Although I do not fully understand the plaintiff's difficulty with sending emails to a generic address, given that Ms Sutherland is the solicitor with conduct of the matter on the defendants' behalf, and she is presumably the person who would access emails sent to the generic address, it is not clear to me that there is a particular reason to have a generic address. The defendants' counsel agreed to take instructions on this aspect of the orders sought and, if necessary, I will hear from the parties further on this issue.
I have dealt with this application by reference to the provisions of the Supreme Court Act and the RSC rather than the inherent jurisdiction of the court because I am satisfied that they provide ample jurisdiction for the orders sought and because I note that in McGuirk v University of New South Wales Sackville AJA (with whom Young JA agreed) agreed with the primary judge (Simpson J), that the inherent jurisdiction of the Supreme Court of New South Wales did not extend to restraining conduct by a litigant, where that conduct does not involve use of the processes of the court itself, constitute a contempt, or constitute the basis for a finding that contempt is threatened. In this case it is unnecessary to examine whether the inherent jurisdiction of this court extends to making orders of the nature sought by the defendants and, given that the plaintiff is a litigant in person, it is undesirable to examine the issue.

Conclusion

As indicated above I will hear the parties as to the final orders to be made and costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
OK
Associate to the Honourable Justice Tottle
6 FEBRUARY 2023