Ogbonna v Qantas Airways Ltd [No 5]

[2023] WASC 334

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

CITATION:   OGBONNA -v- QANTAS AIRWAYS LTD [No 5] [2023] WASC 334

CORAM:   TOTTLE J

HEARD:   ON THE PAPERS

DELIVERED          :   30 AUGUST 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 - Security for costs application - Defamation - Application granted

Legislation:

Rules of the Supreme Court 1971 (WA), O 1 r 4B, O 25 r 1, O 25 r 2, O 25 r 3

Result:

Application granted

Category:    B

Representation:

Counsel:

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

Solicitors:

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

Cases referred to in decision:

Bhatia v Gill [2022] WASC 341

Cowell v Taylor (1885) 31 Ch D 34

Coyne v West Australian Newspapers Ltd (No 1) (1996) 15 WAR 51

CTI Logistics v Ogbonna [2022] FedCFamC2G 781

Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 744

J H Billington Ltd v Billington [1907] 2 KB 106

John Irving as Liquidator of Mawson KLM Holdings Pty Ltd (in liq) v Starmaker (No 51) Pty Ltd (No 2) [2005] SASC 310

Kiefel v Victoria [2014] FCA 604

KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189

Li v New South Wales [2013] NSWCA 165

Mabrouk Minerals Pty Ltd v Mabrouk Holdings Ltd [2008] WASC 132

Matthews v SPI Electricity Pty Ltd (No 9) [2013] VSC 671

Ogbonna v CTI Logistics Ltd (No 6) [2022] FCA 615

Ogbonna v CTI Logistics Ltd [2021] HCASL 122

Ogbonna v CTI Logistics Ltd [2021] WASCA 21

Ogbonna v CTI Logistics Ltd [2021] WASCA 22

Ogbonna v CTI Logistics Ltd [2021] WASCA 24

Ogbonna v CTI Logistics Ltd [2021] WASCA 25

Ogbonna v Qantas Airways Ltd [No 3] [2021] WASC 94

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

Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72

Rajski v Computer Manufacture & Design Pty Ltd [1982] 2 NSWLR 443

Reekie v Attorney-General [2014] 1 NZLR 737

Reschke v Trevor Reschke Nominees Pty Ltd [2020] SASC 60

Shannon v Australia and New Zealand Banking Group Ltd (No 2) [1994] 2 Qd R 563

Shenton v Commonwealth [2005] WASCA 96

Success 618 Pty Ltd v New Zealand Natural Pty Ltd [2015] SASC 86

TOTTLE J:

Introduction

1. These reasons explain why an order for security for costs in the sum of $50,000 will be made against the plaintiff in this defamation action.  The application for security for costs is one of four interlocutory applications that were originally listed for hearing on 5 December 2022.  The other applications were the plaintiff's application for inspection of documents discovered by the defendants over which they claimed legal professional privilege, an application by the plaintiff for judgment on admissions and an application by the defendants for an order that the plaintiff communicate with their solicitors solely in writing.  My reasons in relation to these three applications were published on 6 February 2021.[1]

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

2. Before referring to the evidence and the submissions relied on by the parties it is necessary to set out the procedural history and the nature of the plaintiff's case in some detail.

Procedural history

1. 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.

2. On 10 August 2018 an amended writ was filed.  The amended writ joined additional defendants as the third defendant and the fourth defendant, Western Psychiatry Pty Ltd and Dr Dawn Barker respectively.

3. 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.  An appeal against the decision dismissing the claim against the fourth defendant was itself dismissed on 20 September 2019.  An application for special leave to appeal from the Court of Appeal's decision was dismissed.

4. The plaintiff 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:[2]

   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.

   [2] Ogbonna v Qantas Airways Ltd [No 3] [2021] WASC 94 [3] - [4].

5. 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 ultimately the application was not pressed.  On 3 June 2021 the defendants filed their defence and on 17 June 2021 the plaintiff filed a reply.

6. 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.

7. On 18 August 2022, by way of minute, the defendants' filed their application for security for costs.  The application was first listed for hearing on 21 November 2022.

8. At the request of the plaintiff, the hearing was adjourned to 2.15 pm on 5 December 2022 to enable him to file further evidence and submissions.  The hearing of the security for costs application was to be heard together with the plaintiff's other applications and the defendants' application for an order that the plaintiff communicate with their solicitors solely in writing.

9. At 11.38 am on 5 December 2022, the plaintiff informed my associate by email that he was not feeling well and that he would be unable to attend the hearing that had been listed to commence at 2.15 pm.  No medical evidence was provided by the plaintiff and the material before the court was limited to the statement that he was not feeling well and was thus unable to attend the hearing.  The hearing was adjourned at the plaintiff's request to 31 January 2023. 

10. Following the adjournment of the hearing on 5 December 2022 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.

11. 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.

12. On 31 January 2023, there was insufficient time to deal with all the applications and the defendants' application for security for costs was adjourned to 16 February 2023, a date on which both the parties were available.

13. On 7 February 2023, the plaintiff filed a chamber summons making a further application for judgment on admissions notwithstanding that his earlier application for judgment on admissions had been dismissed at the hearing on 31 January 2023.  The application for judgment was based on a notice to admit facts served on 3 February 2023.

14. At 8.06 am on 16 February 2023, the plaintiff informed my associate by email that he was not feeling well and that he would be unable to attend the hearing listed for that day.  Once again, no medical evidence was provided by the plaintiff as to his state of health, and the material before the court is limited to the statement that he was not feeling well and was thus unable to attend the hearing.  The hearing of the application for security for costs was adjourned but an order was made to the effect that the plaintiff should only communicate with the defendants' solicitors in writing by email to a specified email address.

15. On 17 February 2023, my associate requested the plaintiff's availability for the matter to be heard within the two weeks following 20 February 2023.

16. On 17 February 2023, the plaintiff responded by email to my associate that he was not available and requested that the application be listed sometime in March, April or May 2023.  The plaintiff's email was as follows:

    Dear Associate

    I am unavailable for the next two weeks as I am going through a lot at the moment.  I do not have any legal representation and doing everything as a self-represented litigant.  I have had to fight judicial corruption which has not been easy, this has been the case in this ongoing matter for some time now.

    So, the parties should provide their unavailability for March, April and May 2023, as well for the Defendants to be given the opportunity to file any affidavit and submissions in opposition to my application for judgement against the defendants except you do not want to afford them procedural fairness.

17. Later, on 17 February 2023, by way of email, my associate requested the availability of the parties for a hearing in March, April or May 2023.  A follow-up email was then sent to the parties on 22 February 2023 again requesting their availability.  The plaintiff did not respond to these emails.

18. On 24 February 2023, an email was sent advising the plaintiff that if he did not provide his unavailable dates by 4.30 pm on Monday, 27 February 2023, the hearing would be fixed without reference to his availability.

19. On 27 February 2023, the plaintiff replied by email that he was unavailable for the entirety of March and April 2023.  The combined unavailability of the parties in May 2023 meant that the matter could not be listed in that month.

20. On 28 February 2023, my associate requested the parties' availability for a hearing of the application on dates from June 2023 onwards.

21. On 9 March 2023, the plaintiff responded that he was unavailable for the entirety of June and July 2023.  The plaintiff indicated that he was available from 23 to 25 and 28 to 31 August 2023.  The application was subsequently listed for hearing at 10.30 am on 23 August 2023.

22. In the meantime, the plaintiff had applied for leave to appeal against the order that he communicate with the defendants' solicitors solely in writing.  The application was dismissed because the plaintiff failed to file a compliant appellant's case.

23. On 21 August 2023, the plaintiff filed and served a supplementary affidavit and an amended outline of submissions in opposition to the defendants' application.

24. On the morning of 22 August 2023, the plaintiff informed my associate that he was unable to attend the hearing listed for the following day because he had been ill and was recovering and he had a blister on his lip and could not talk comfortably.  My associate informed the plaintiff that any application for an adjournment that he wished to make was required to be supported by an affidavit and if, the application was made on the ground of ill-health, the application should be supported by medical evidence.

25. Late on the evening of 22 August 2023, the plaintiff filed and served an affidavit in support of orders adjourning the hearing listed for 23 August 2023.  The plaintiff deposed that he had 'been feeling unwell for sometimes now and my immunity is low as I have a big sore on my lips' and that he was unable to attend the hearing.  He attached a medical certificate to his affidavit in which a general medical practitioner stated that the plaintiff was receiving medical treatment and was 'unfit to speak publicly due to lower lip infection'. 

26. The plaintiff did not attend the hearing listed on 23 August 2023. Counsel for the defendants opposed the plaintiff's application for an adjournment. I dismissed the plaintiff's application for an adjournment but made a direction that the application for security for costs should be determined on the papers. Shortly stated, my reasons for dismissing the plaintiff's application and making an order that the matter be determined on the papers was that, in the light of the history I have recounted, adjourning the application to a further hearing and the likely delay that would entail would be inconsistent with the objectives of positive case flow management as stated in O 1 r 4B of the Rules of the Supreme Court 1971 (WA).

Outline of the plaintiff's claims and the defence

1. 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. 

2. 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.[3]

   [3] Amended substituted statement of claim filed 1 July 2022 pars 1 - 15.

3. 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'.[4]  Relying on these allegations the plaintiff seeks declarations to the general effect that he was constructively dismissed, and general damages of $80,000.[5]

   [4] Amended substituted statement of claim filed 1 July 2022 par 18(b).

   [5] Amended substituted statement of claim filed 1 July 2022 pars 16 - 31.

4. 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.[6]

   [6] Defence filed 3 June 2021 pars 1 - 40.

5. The plaintiff alleges that he was 'constantly bullied, harassed and disparaged'.[7]  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.[8]

   [7] Amended substituted statement of claim filed 1 July 2022 par 32.

   [8] Amended substituted statement of claim filed 1 July 2022 pars 32 - 40.

6. 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.[9]

   [9] Amended substituted statement of claim filed 1 July 2022 pars 41 - 48.

7. The defendants dispute the material factual allegations on which the plaintiff's claims that he was bullied, harassed and assaulted are based.[10]

   [10] Defence filed 3 June 2021 pars 41 - 48.

8. 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.[11]

   [11] Amended substituted statement of claim filed 1 July 2022 pars 49 - 60.

9. 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.[12]

   [12] Defence filed 3 June 2021 pars 49 - 60.

10. 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.[13]

    [13] Reply filed 17 June 2021 pars 49 - 60.

11. 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.[14]

    [14] Amended substituted statement of claim filed 1 July 2022 pars 73 - 84.

12. 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.[15]

    [15] Defence filed 3 June 2021 pars 73 - 84.

13. 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.[16]

    [16] Amended substituted statement of claim filed 1 July 2022 pars 61 - 72.

14. 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.[17]

    [17] Defence filed 3 June 2021 pars 61 - 72; reply filed 17 June 2021 pars 61 - 72.

15. 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'.[18]  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'.[19]  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.[20]

    [18] Amended substituted statement of claim filed 1 July 2022 par 89(a).

    [19] Amended substituted statement of claim filed 1 July 2022 par 89(b).

    [20] Amended substituted statement of claim filed 1 July 2022 pars 85 - 96.

1. The defendants dispute all of the allegations on which the claims of defamatory statements by unidentified employees of the second defendant are made.[21]

   [21] Defence filed 3 June 2021 pars 85 - 96.

Defendants' application for security for costs

The application and the evidence

1. The defendants' application is for security for the costs it anticipates it has and will incur between the date of the application and the trial.

2. The application is supported by two affidavits sworn by Ms Julia Sutherland.  Ms Sutherland's first affidavit was sworn on 18 August 2022 and her second affidavit was sworn on 29 September 2022. 

3. Ms Sutherland's evidence may be summarised as follows:

   (a)Progress in the action has been slow.  Ms Sutherland gives a chronological account of the attempts by the plaintiff to plead his claims and to which I have referred in more general terms under the heading 'Procedural history'.

   (b)In the course of these proceedings costs orders have been made against the plaintiff as follows:

   (i)On 3 May 2018 Le Miere J ordered that the plaintiff pay the defendants' costs of their application to strike out the statement of claim filed on 22 February 2018.

   (ii)On 13 November 2020 Le Miere J ordered that:

   The plaintiff pay the defendants' costs of the plaintiff's application for leave to rely on his minute of proposed substituted statement of claim dated 7 July 2020 including the costs of:  

   (a)the hearing on 14 August 2020;

   (b)considering whether:

   (i)the statements of claim (or minutes of) statement of claim dated 22 April 2020, 3 and 5 June 2020 ('statements of claim') disclosed a reasonable cause of action or were likely to prejudice delay or embarrass the fair trial of the action, and

   (ii) whether leave should be granted and/or those statements of claim should be struck out;

   (c)conferring with the plaintiff about those statements of claim; and

   (d)preparing for directions hearings (even where those hearings were adjourned) and attending directions hearings in relation to those statements of claim, except where orders have already been made in relation to the costs of those hearings, such costs to be taxed if not agreed.

   (iii)On 8 April 2021 Le Miere J ordered that:

   The plaintiff pay the defendants' costs of, and incidental to, the plaintiff's application for leave to rely on his substituted statement of claim dated 10 December 2020 and his draft substituted statement of claim dated 11 February 2021, including costs of:

   (a) conferring with plaintiff;

   (b) the hearings dated 15 December 2020, 28 January 2021 and 8 April 2021; and

   (c) correspondence with the court on 22 February 2021,

   such costs to be taxed if not agreed.

   (iv)On 29 April 2021 Le Miere J ordered that the plaintiff pay the defendants' costs for his application for leave to apply for summary judgment dated 28 April 2021, to be taxed if not agreed.

   (c)Ms Sutherland deposed that the defendants have offered to compromise their claims for costs pursuant to the orders made in their favour but the plaintiff has not responded to their offers or otherwise engaged with them in relation to their claims for costs.

   (d)Ms Sutherland deposed that a National Property Ownership Report dated 25 July 2022 discloses that the plaintiff owns no real property in Australia. 

   (e)Ms Sutherland deposed that a sequestration order was made against the plaintiff's estate on 20 September 2022.  The creditors' petition on which the sequestration order was made was filed on 17 May 2022.  The debt due to the petitioning creditors by the plaintiff was $29,050.63 inclusive of interest and arose from an adverse costs order made against the plaintiff in proceedings before the Federal Circuit Court of Australia.  In those proceedings the plaintiff had sued a company, CTI Logistics Ltd, and two individuals. 

   (f)Ms Sutherland summarised numerous proceedings commenced by the plaintiff in the Federal Circuit Court, the Federal Circuit and Family Court of Australia, the Federal Court and in the courts of this State in which the plaintiff has been unsuccessful and in which he has been the subject of adverse costs orders. 

   (g)Ms Sutherland annexed to her affidavit orders made by Colvin J on 23 May 2022 in the proceedings brought by the plaintiff against CTI Logistics Ltd prohibiting the plaintiff from instituting proceedings against the respondents, their present or future legal practitioners in those proceedings, or any of CTI Logistics Ltd's officers and employees. The orders were made pursuant to s 37AO of the Federal Court of Australia Act 1976 (Cth) that provides that if the Federal Court is satisfied that a person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals, then the Federal Court may make an order prohibiting the person from instituting proceedings, or proceedings of a particular type, in the Court. In his reasons for making the orders Colvin J reviewed the history of various proceedings commenced by the plaintiff and concluded that he was a person who had frequently instituted or conducted vexatious proceedings.

   (h)Ms Sutherland deposed that the plaintiff had been put on notice by an email sent on 21 May 2021 that the defendants did not propose to apply for security for costs before their defence was filed and they reserved the right to do so at a later time.

   (i)Orders for mediation were made on 16 March 2022 and a mediation took place on 16 June 2022.

   (j)Ms Sutherland estimated that the costs which the defendants would incur between 18 August 2022 and completion of the trial would be $216,172 and explained in detail how she had calculated that figure using the rates specified in the Legal Profession (Supreme and District Courts) (Contentious Business) Determination 2018 (WA). Ms Sutherland deposed that the actual costs that the defendants would incur would be substantially greater than $216,172 because the rates specified in the costs determination were lower than the rates which the defendants will be charged.

4. At one stage the plaintiff foreshadowed an application for leave to cross-examine Ms Sutherland.  The grounds on which the plaintiff intended to base this application were not fully developed but, given that the discretion to grant leave to cross-examine deponents of affidavits sworn in support of interlocutory applications is granted sparingly, it is unlikely that the application foreshadowed by the plaintiff would have been successful.

5. Before turning to the plaintiff's evidence it is helpful to refer to the background that led to Colvin J's finding that the plaintiff had commenced proceedings vexatiously.  This is most conveniently done by reproducing that section of Colvin J's judgment entitled 'Context for the present application':[22]

   [22] Ogbonna v CTI Logistics Ltd (No 6) [2022] FCA 615 [8] - [20].

   8A number of years ago, Mr Celestine Ogbonna worked for a time for CTI.  His employment was terminated.  Acting on his own behalf, Mr Ogbonna brought a claim in what was then the Federal Circuit Court alleging racial discrimination in the course of his employment.  The claim was made against CTI and two of its employees, Mr Tim Barton and Mr Mark Vanderlist.  The allegations made by Mr Ogbonna concerned events which were said to have occurred in 2012.  After a hearing, his claims were dismissed.  In the course of the reasons given by the Circuit Court judge, an email sent by a manager of CTI, Mr Raspa, which contained comments which were adverse to Mr Ogbonna was quoted: Ogbonna v CTI Logistics Ltd (No 2) [2015] FCCA 2318 at [68]. Since then, as will emerge, the email has been the focus of much litigation.

   9With the assistance of lawyers acting on his behalf, an appeal was brought against the dismissal of the claim in the Circuit Court.  One of the appeal grounds concerned the email.  It contended that it was unfair for the primary judge to have relied upon the statements in the email concerning Mr Ogbonna in circumstances where its author had not been called to give evidence.  The appeal ground alleged that the statements in the email were defamatory and contrary to evidence at the hearing.  On the appeal, the issue raised by the ground was described by a judge of this court as being 'of some concern' and the fact that extracts from the email were set out in the reasons were said to be 'troublesome' in circumstances where the author of the email was not called as a witness.

   10It was found that the Circuit Court judge ought to have raised the issue of the admissibility of the material with Mr Ogbonna as a self-represented litigant.  However, the appeal ground was not successful because it was found that the contents of the email did not affect the relevant findings made by the primary judge:  Ogbonna v CTI Logistics Ltd [2016] FCA 239 at [40]-[47]. The other appeal grounds were also not upheld and the appeal was dismissed.

   11Mr Ogbonna then commenced proceedings in the District Court of Western Australia in which he alleged that there had been a republication of the extract from the email by the Australian Legal Information Institute when, on 24 February 2018, it published a report of the reasons for decision of the Circuit Court judge. provides a service by which the reasons for decisions of various courts and tribunals in Australia may be accessed through its website.  Mr Ogbonna alleged that the republication was defamatory and that Mr Raspa was responsible for the republication as a natural and probable consequence of the original publication of the email.  CTI was alleged to be vicariously liable for the conduct of Mr Raspa.

   12The defamation proceedings were summarily dismissed. Mr Ogbonna then brought an unsuccessful appeal in the Court of Appeal in Western Australia.  An application for special leave to appeal to the High Court was refused.  In each of those proceedings, Mr Ogbonna acted on his own behalf.

   13In the meantime, in reliance upon the failure to pay an amount of costs ordered in the original proceedings in the Circuit Court, CTI, Mr Vanderlist and Mr Barton issued a bankruptcy notice. Mr Ogbonna applied to set aside the bankruptcy notice on the basis of an alleged counterclaim, setoff or cross-demand, being his defamation claim which was then being pursued.  The set aside application was held in abeyance until the outcome of that claim was known.  Once special leave was refused by the High Court, the set aside application was listed for hearing.

   14At that point, Mr Ogbonna commenced fresh proceedings in this Court in which he maintained that there had been fraud, conspiracy and judicial corruption in the consideration and rejection of his defamation claim by the courts (Claims).  So, having relied for a number of years upon the claim for defamation as the basis for setting aside the bankruptcy notice and having taken his case to the High Court and been unsuccessful Mr Ogbonna then relied upon the Claims as the basis for opposing the bankruptcy notice.  Notwithstanding the nature of the allegations (which were mostly directed at the judges who had been involved in determining the outcome of his defamation claim), the proceedings in respect of the Claims were brought against CTI, Mr Raspa, Mr Mellor and two lawyers who had acted for CTI in the course of the defamation proceedings, namely the Respondents.

   15In November 2021, I heard and dismissed Mr Ogbonna's application to set aside the bankruptcy notice: Ogbonna v CTI Logistics Limited [2021] FCA 1491. For reasons that I then gave, the application was hopelessly misconceived. It made allegations of the most serious kind against senior and experienced judges of three courts. They were most fervently expressed, but utterly devoid of merit.

   16Undeterred, Mr Ogbonna continued to press the Claims in the present proceedings.  In February 2022, I upheld an application to summarily dismiss the Claims:  Ogbonna v CTI Logistics Limited (No 2) [2022] FCA 75. Those orders were conditioned in a way that provided for the pending application by the Respondents for orders pursuant to s 37AO to be determined at a later time.

   17Prior to the summary dismissal of the proceedings, I had refused to grant leave to issue a subpoena in terms sought by Mr Ogbonna which was said by him to be necessary for any consideration as to whether the proceedings should be dismissed on a summary basis (and an application that he had brought for what he described as summary dismissal of the Respondent's application for summary dismissal).  At the time of making that decision I also refused an application by Mr Ogbonna that I should recuse myself for actual bias.  Mr Ogbonna then sought leave to appeal against that decision.  The application for leave was refused.  In reasons for refusing leave, Jackson J said (Ogbonna v CTI Logistics Limited [2022] FCA 227 at [8]):

   Turning to Mr Ogbonna's case for leave to appeal, he made a number of extravagant and inflammatory submissions alleging racial discrimination, dishonesty, corruption and criminality against a number of persons.  There is no apparent proper basis in the evidence before me for those allegations, and there is no need to record those submissions in any detail in this judgment.  He also made submissions going to the merits of historical proceedings in the District Court of Western Australia and the Court of Appeal of Western Australia which were addressed in the Dismissal Decision.  Those submissions are irrelevant to the present proceeding and also need not be recorded.

   18His Honour also observed at [23] that 'Mr Ogbonna has articulated no cogent reason to doubt the correctness of the primary judge's decision not to recuse himself for bias'.

   19Just prior to the scheduled hearing of the application for orders pursuant to s 37AO, Mr Ogbonna made a further application for my recusal. As I have explained in separate reasons on that application, in effect the basis for the application was a complaint about the outcome of various interlocutory applications made by Mr Ogbonna: see Ogbonna v CTI Logistics Limited (No 5) [2022] FCA 612. The nature of the application and the extravagant language used to support the application, manifested an extreme unwillingness on the part of Mr Ogbonna to accept not only the determination of his defamation claim (after exhausting all avenues of appeal) but also the adjudication in decisions of this Court that the Claims to the effect that there had been some form of judicial impropriety in the adjudication of his defamation claim lacked any proper foundation.

   20In addition, on 22 March 2022 I dealt with an application by Mr Ogbonna for leave to file an application for judgment based upon the Claims which had been summarily dismissed.  Leave was refused, noting that the only avenue to challenge the dismissal was an appeal:  Ogbonna v CTI Logistics Limited (No 3) [2022] FCA 267. Mr Ogbonna has indeed sought leave to commence such an appeal. His affidavit in support of the application asks the Court to revisit whether CTI and Mr Raspa were responsible for republication of the email by being the issue finally determined by the Court of Appeal and the refusal by the High Court of special leave.

6. In the extract from his judgment set out in the preceding paragraph Colvin J referred to the plaintiff's appeal from the decision of the District Court of Western Australia to the Court of Appeal.  In that appeal the plaintiff applied unsuccessfully for each member of the court to recuse himself.  In respect of two members of the court the plaintiff alleged both actual and apprehended bias and in respect of the third, the plaintiff alleged actual bias.[23]  The plaintiff's allegations extended to allegations of dishonesty and 'judicial corruption'.  As Colvin J recorded in his judgment, the plaintiff's appeal was dismissed.[24]  The plaintiff made an application for special leave to appeal to the High Court and that was dismissed.[25]

   [23] Ogbonna v CTI Logistics Ltd [2021] WASCA 21; Ogbonna v CTI Logistics Ltd [2021] WASCA 22; Ogbonna v CTI Logistics Ltd [2021] WASCA 24.

   [24] Ogbonna v CTI Logistics Ltd [2021] WASCA 25.

   [25] Ogbonna v CTI Logistics Ltd[2021] HCASL 122.

7. One of the grounds on which the plaintiff opposed the making of a sequestration order was that the 'decision supporting the creditor's petition was fraudulent'.  Judge Street of the Federal Circuit and Family Court addressed this ground as follows:[26]

   The respondent filed a notice stating grounds of opposition on 9 September 2022 which, in paragraph 1, contended the creditor's petition as fraudulent and taking issue with the decision dismissing the application to set aside the bankruptcy notice.

   To the extent that paragraph 1 is seeking to impeach the Judgment Debt the subject of the bankruptcy notice, the Court has taken into account the decision in Cristova v Tan & Tan Lawyers Pty Ltd [2018] FCAFC 41 at [32] to [34]. The Court finds that there is no evidentiary basis to find that the Judgment Debt is not, in truth and in reality, a debt owing. There is no proper evidentiary basis for the allegation that the creditors' petition is fraudulent.

   The respondent has identified a theory of alleged conspiracy involving the applicants and judicial officers involved in adverse determinations to the respondent.  The making of an adverse determination by a court in respect of published reasons cannot be a proper basis for an allegation of fraud.  Beyond conclusory assertions by the respondent there is no evidence to support the existence of any fraud by the applicants in the obtaining of the judgment debt the subject of the bankruptcy notice and the respondent's assertions concerning judicial officers are baseless.

   The respondent's disquiet appears to arise from how he perceives he was treated and the seeking of a sequestration order.  The respondent's other sense of grievance arises because of his belief that he has been treated differently by reason of his African heritage.  The respondent articulated that he believes his rights have been violated and that he has been subject to systemic racism.  These allegations are conclusory assertions and there is no proper evidentiary basis to support the respondent's complaint of differential treatment, violation of rights or racism.  The applicants have a legal right to pursue bankruptcy proceedings given the outstanding judgment debt.  There is no evidence of pursuit of these proceedings for an improper purpose.

   The respondent identified himself as the author of a proposed pleading that was attached to the respondent's affidavit dated 13 September 2022 and described as a counter-claim.  There is a proposed originating application with parties to be named later and prayers for relief seeking the payment of damages, including aggravated damages and a proposed statement of claim, identifying the petitioning creditor as the first respondent and identifying other persons as proposed respondents, which comprises 103 paragraphs.  That proposed application, proposed statement of claim and the relevant paragraph in the affidavit were initially proposed to be admitted by the Court subject to relevance.  However, the Court varied that ruling and admitted the same into evidence.  This is because it is apparent that the documents have a potential relevance, being the alleged basis of the counter-claim upon which the respondent seeks to resist the making of a sequestration order and to show other sufficient cause.

   The respondent's case is re-characterised as fraud in the nature of an unlawful conspiracy and is at the highest level of generality.  The allegations involve alleged unlawful conspiracy and contraventions of the Criminal Code Act 1995 (Cth) which are not properly pleaded and, on their face, appear vexatious and, in relation to judicial officers, scandalous. However, because the two documents are at the heart of the respondent's claim to have an alleged counter-claim, it, accordingly, cannot be said to be irrelevant to the issues before this Court. Admitting the documents into evidence does not however give the documents any evidentiary foundation.

   The Court decided, at this hearing, not to strike out the content of the same under r 15.16 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) ('the GFL Rules'), or, at this hearing, to make suppression orders in respect of the content.  However, it should be observed that the serious allegations of unlawful conspiracy are not properly pleaded, are not properly particularised and that the unsupported allegations are vexatious and scandalous.  There is no factual basis to support any agreement to find an allegation of conspiracy and no factual basis to identify unlawful conduct.  There is no skerrick of an evidentiary basis for the allegations of fraud.  The documents disclose no real cause of action, are embarrassing and do not disclose a genuine counter-claim, set-off or cross demand.  There is no need to give further air to the allegations contained in the documents, which require leave to commence proceedings.  The Court has no hesitation in finding that the documents have no real prospect of leave being granted to commence proceedings.

   [26] CTI Logistics v Ogbonna[2022] FedCFamC2G 781 [53] - [59].

1. The plaintiff relies on two affidavits sworn by him on 15 September 2022 and 21 August 2023 to resist the application.  The September 2022 affidavit comprises of four paragraphs as follows:

   1.I am the Plaintiff in these legal proceedings and the matters deposed herein are within my own knowledge and are true and correct to the best of my knowledge, information, and belief.

   2.I wish to state that I am not a vexatious litigant has been alleged by the Defendants' lawyer Julia Elizabeth Sutherland in her affidavit that was sworn on 18 August 2022.  As a result of the defamatory statement, I have issued her and the Defendants a Notice to Cease and Desist dated 15 September 2022.

   3.I have also attached the affidavit that was sworn on 14 March 2022 and filed in the Federal Court.  [redacted]'s affidavit that was sworn 25 January 2022 was fraudulent in nature and include as annexure A4 in the Notice to Cease and Desist.  My letter to the Attorney General explains everything in detail and show judicial corruption at its height.

   4.I attest that the attached document and the foregoing statements made by me herein are true.  I know that it is a serious offence to make statements, knowing that it is false in a material particular, pursuant to the Oaths, Affidavits and Statutory Declarations Act 2005 (WA) and other related laws.

2. The plaintiff's September 2022 affidavit has annexures that extend to 342 pages.

3. The plaintiff's August 2023 affidavit has 51 paragraphs of text and 144 pages of annexures.  The content of the text of the affidavit is largely argumentative material directed to establishing that decisions adverse to the plaintiff's interests made in the Federal Circuit Court, the Federal Circuit and Family Court, and the Federal Court were not only wrongly made but that the reasons for those decisions are false or 'fraudulent' documents that cannot be relied on by the defendants for the purposes of the application for security for costs.

4. It is difficult to summarise the effect of the plaintiff's evidence but the matters that I understand the plaintiff wishes to establish are as follows:

   (a)The orders of Colvin J made under s 37AO of the Federal Court of Australia Act 1976 (Cth) were made as a result of 'a fraudulent decision' and that the decision to make a sequestration order in respect of the plaintiff's estate was 'fraudulent'.

   (b)The content of Ms Sutherland's affidavits are defamatory of him and contain false statements which may expose her to criminal penalties.

   (c)He has been the successful party in at least some proceedings and proceedings against other former employers have resulted in the payment of compensation to him.

   (d)He has been the victim of an unlawful means conspiracy involving a judge of the District Court, the Chief Justice of this court, two justices of appeal of the Court of Appeal and Justice Colvin.  Further, two High Court judges have 'perverted the course of justice'.

   (e)Ms Sutherland's affidavits rely on false Commonwealth documents which should not be relied upon. 

   (f)He has not engaged in vexatious proceedings.

Outline of the opposing arguments

1. In outline the defendants' contentions were to the following effect:

   (a)The court should grant security because:

   (i)the plaintiff has commenced numerous proceedings against a variety of defendants;

   (ii)costs orders have already been made against the plaintiff in this action;

   (iii)a sequestration order has been made against the plaintiff in relation to unpaid legal costs; and

   (iv)vexatious proceedings orders have been made against the plaintiff in the Federal Court. 

   (b)There is ample reason to believe that the plaintiff may be unable to pay any costs ordered at the end of the action.

   (c)This is not a case in which the defendants rely solely on the bankruptcy of the plaintiff.

   (d)The application is not defeated by delay on the part of the defendants in circumstances in which most of the delay in the proceedings has been occasioned by the difficulty faced by the plaintiff in pleading his claims and by his appeals in relation to the summary judgment application.  Further, the defendants put the plaintiff on notice that they may apply for security for costs after the filing of their defence.

   (e)The merits of the action are difficult to assess and are not determinative of the application.

   (f)The defendants have not brought about the impecuniosity of the plaintiff. 

   (g)The amount of security sought is not oppressive.

2. In outline the plaintiff's submissions were to the following effect:

   (a)The defendants have no defence.

   (b)The plaintiff is entitled to judgment on admissions.  Consequently, the application for security for costs is thus irrelevant.

   (c)The decision to the effect that the plaintiff was a vexatious litigant was 'fraudulent'.

   (d)The decision to make a sequestration order was fraudulent.

   (e)The defendants' lawyer, Ms Sutherland, had refused to comply with the plaintiff's 'notice to cease and desist'.

   (f)Racism has played a role in denying the plaintiff 'his fundamental rights' and it would be appropriate for the court to prevent another miscarriage of justice by refusing the application for security.

   (g)A decision on the application should be reserved until the plaintiff's appeal against the making of the sequestration order has been determined alternatively, the hearing of the application should be delayed until the appeal to the Federal Court has been determined.

   (h)The plaintiff's claim is not vexatious but is a legitimate claim.  The court should proceed on the basis that the claim is bond fide and has reasonable prospects of success.

   (i)The defendants are attempting to stifle the plaintiff's claim.

   (j)The defendants caused the plaintiff's impecuniosity.

   (k)The defendants have delayed in making the application.

   (l)The defendants' application is vexatious, frivolous and in bad faith.

   (m)The defendants rely on false or misleading Commonwealth documents that state the plaintiff is bankrupt and a vexatious litigant.  Such documents cannot be relied upon.

The relevant provisions of the Rules of the Supreme Court and the guiding principles

1. Before turning to examine the relevant provisions of the Rules of the Supreme Court and the principles that guide the exercise of the discretion to order security for costs in detail it is helpful to refer to the underlying principle which is that ordinarily the successful party in litigation is entitled to an award of costs in its favour - this is referred to as the 'usual order as to costs'.  In Oshlack v Richmond River Council,[27] McHugh J explained:[28]

   The expression the 'usual order as to costs' embodies the important principle that, subject to certain limited exceptions, a successful party in litigation is entitled to an award of costs in its favour.  The principle is grounded in reasons of fairness and policy and operates whether the successful party is the plaintiff or the defendant.  Costs are not awarded to punish an unsuccessful party.  The primary purpose of an award of costs is to indemnify the successful party.  If the litigation had not been brought, or defended, by the unsuccessful party the successful party would not have incurred the expense which it did.  As between the parties, fairness dictates that the unsuccessful party typically bears the liability for the costs of the unsuccessful litigation.

   As a matter of policy, one beneficial by-product of this compensatory purpose may well be to instil in a party contemplating commencing, or defending, litigation a sober realisation of the potential financial expense involved.  Large scale disregard of the principle of the usual order as to costs would inevitably lead to an increase in litigation with an increased, and often unnecessary, burden on the scarce resources of the publicly funded system of justice.  (footnotes omitted)

   [27] Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72.

   [28] Oshlack v Richmond River Council [67] - [68].

2. In Idoport Pty Ltd v National Australia Bank Ltd,[29] Einstein J referred to McHugh J's observations about the 'usual order as to costs' and, in a passage cited with approval in many subsequent cases,[30] held:[31]

   The purpose of a security for costs order is therefore a protective jurisdiction to ensure that the primary purposes for having costs orders themselves, can be achieved.  A defendant is protected against the risk that a costs order obtained at the end of the day may turn out to be of no value by reason of the impecuniosity of the plaintiff.  The jurisdiction therefore assists both the compensation purpose as well as the public interest objective.

   [29] Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 744.

   [30] Li v New South Wales [2013] NSWCA 165 [20] (Ward JA), [1] (Macfarlan JA), [55] (Gleeson JA); John Irving as Liquidator of Mawson KLM Holdings Pty Ltd (in liq) v Starmaker (No 51) Pty Ltd (No 2) [2005] SASC 310 [33] (Lunn J); Matthews v SPI Electricity Pty Ltd (No 9) [2013] VSC 671 [109] (Derham AsJ); Reschke v Trevor Reschke Nominees Pty Ltd [2020] SASC 60 [35] - [36] (Blue J).

   [31] Idoport Pty Ltd v National Australia Bank Ltd [52].

3. Order 25 of the Rules of the Supreme Court provides express power to order security.  Relevantly, the order provides: 

   1.Factors that are not grounds for ordering security for costs

   The Court may order security for costs to be given by a plaintiff, but no order shall be made merely on account of the poverty of the plaintiff or the likely inability of the plaintiff to pay any costs which may be awarded against him.

   2.Grounds for ordering security for costs

   Without limiting the generality of rule 1 the Court may order security for costs to be furnished where the plaintiff -

   (a)is ordinarily resident out of the jurisdiction, notwithstanding that he may be temporarily within the jurisdiction;

   (b)is about to depart from the jurisdiction;

   (c)enjoys within the jurisdiction some privilege which renders him immune, wholly or partially, from the normal processes of execution;

   (d)is an undischarged bankrupt or a person who has suspended, or given notice of suspension of, his debts;

   (e)is a company in liquidation or under official management, or a company in respect of which a receiver of its property has been appointed;

   (f)is a relator suing for the enforcement or declaration of some public right or to have some public trust carried out or some charitable scheme settled;

   (g)is in default in respect of any costs ordered to be paid by him in any proceedings previously brought by him against the same defendant or another defendant for substantially the same cause of action or in relation to substantially the same subject matter;

   (h)is a person who has in the past vexatiously brought litigation against the same defendant or against any other defendant;

   (i)is suing the sheriff in respect of anything done or omitted to be done by the sheriff or his officers in the execution of any judgment of the Court.

   3.Court has discretion

   The granting of security shall be in the discretion of the Court, and in determining whether an order should be made the Court shall take into consideration -

   (a)the prima facie merits of the claim;

   (b)what property within the jurisdiction may be available to satisfy any order for costs against the plaintiff;

   (c)whether the normal processes of the Court would be available within the jurisdiction for enforcement of any order for costs made against the plaintiff.

4. In addition, the court has an inherent jurisdiction to order security for costs which is not confined by the provisions of O 25.[32]

[32] J H Billington Ltd v Billington [1907] 2 KB 106, 109 (Lord Alverstone CJ); Rajski v Computer Manufacture & Design Pty Ltd [1982] 2 NSWLR 443, 447 (Holland J); Shannon v Australia and New Zealand Banking Group Ltd (No 2) [1994] 2 Qd R 563, 563 - 564 (Williams J); see also the authorities discussed in Dal Pont G E, Law of Costs (5^th ed, 2021) 28.6.

1. The circumstances listed in O 25 r 2 do not limit the discretion to order security. The discretion is unfettered. The point was expressed by Newnes J (as his Honour then was) in Mabrouk Minerals Pty Ltd v Mabrouk Holdings Ltd,[33] as follows:[34]

   It is well-established that the discretion to order security for costs is unfettered and depends upon an examination of all of the relevant circumstances.  The circumstances in which the discretion should be exercised cannot be stated exhaustively.  They will vary from case to case and the weight to be given to any circumstance in a particular case will depend not only upon its own intrinsic persuasiveness but upon the impact of the other circumstances which have to be weighed:  PS Chellaram & Co Ltd v China Ocean Shipping Co (1991) 102 ALR 321, 323.

   [33] Mabrouk Minerals Pty Ltd v Mabrouk Holdings Ltd [2008] WASC 132.

   [34] Mabrouk Minerals Pty Ltd v Mabrouk Holdings Ltd [57].

2. In KP Cable Investments Pty Ltd v Meltglow Pty Ltd,[35] Beazley J made the same point regarding the unfettered nature of the discretion to order security for costs as that made by Newnes J in Mahbrouk Minerals Pty Ltd v Mabrouk Holdings Ltd and stated the discretion should be exercised 'without any predisposition in favour of the award of security'.[36]  Her Honour identified seven 'well-established guidelines' typically taken into account in determining an application for security and supported each guideline by reference to authority.  Omitting her Honour's references to the authorities, the guidelines applicable when the plaintiff is a natural person may be restated as follows:[37]

   (a)Applications should be brought promptly.

   (b)The strength and bona fides of the plaintiff's case are relevant considerations.  As a general rule, where a claim is prima facie regular on its face and discloses a cause of action, in the absence of evidence to the contrary, the court should proceed on the basis that the claim is bona fide with a reasonable prospect of success.

   (c)Whether the plaintiff's impecuniosity was caused by the defendant's conduct that is the subject of the claim is a relevant consideration.

   (d)Whether the defendant's application for security is oppressive, in the sense that it is being used merely to deny an impecunious plaintiff a right to litigate is a relevant consideration.  Though the fact that the ordering of security will frustrate the plaintiff's rights to litigate its claim because of its financial condition does not automatically lead to the refusal of an order but it will usually operate as a powerful factor in favour of exercising the court's discretion in the plaintiff's favour.

   (e)Security will only ordinarily be ordered against a party who is in substance a plaintiff, and an order ought not to be made against parties who are defending themselves and thus forced to litigate.

   [35] KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189.

   [36] KP Cable Investments Pty Ltd v Meltglow Pty Ltd (196).

   [37] KP Cable Investments Pty Ltd v Meltglow Pty Ltd (197).

3. In addition to the guidelines identified by Beazley J the following principles have been held to guide the exercise of the discretion.

   (a)A plaintiff's poverty is not by itself a ground for ordering security for costs.  This reflects the policy expressed by Bowen LJ in Cowell v Taylor,[38] that:[39]

   The general rule is that poverty is no bar to a litigant.  That, from time immemorial, has been the rule at common law, and also, I believe, in equity.

   (b)Related to the principle recorded in (a), while the fact that the plaintiff is an undischarged bankrupt is sufficient to enliven the discretion to order security for costs this alone would not ordinarily be sufficient to warrant the exercise of the court's discretion to order security.[40]

   (c)If a plaintiff is a plaintiff in name but not in substance he or she may be compelled to provide security even if impecunious.[41]

   [38] Cowell v Taylor (1885) 31 Ch D 34.

   [39] Cowell v Taylor (38).

   [40] Coyne v West Australian Newspapers Ltd (No 1) (1996) 15 WAR 51, 71 (Steytler J), Shenton v Commonwealth [2005] WASCA 96 [21] (Pullin JA), [1] (Wheeler JA).

   [41] Coyne v West Australian Newspapers Ltd (No 1) (72 - 73) (Steytler J).

4. It will be apparent that there is a tension between the protective purpose of the discretion to order security for costs and the general principle that the impecuniosity of a plaintiff is not of itself a ground for ordering security.  In delivering the judgment of the Supreme Court of New Zealand in Reekie v Attorney-General, [42] William Young J observed:[43]

   The jurisdiction to require security poses something of a conundrum for the courts.  The poorer the plaintiff, the more exposed the defendant is to costs and the greater the apparent justification for security.  But, as well, the poorer the plaintiff, the less likely it is that security will be able to be provided and thus the greater the risk of a worthy claim being stifled.

   [42] Reekie v Attorney-General [2014] 1 NZLR 737.

   [43] Reekie v Attorney-General [2].

5. Observations to the same effect have been made by other judges.[44]

   [44] Kiefel v Victoria [2014] FCA 604 [51] - [52] (Mortimer J); Success 618 Pty Ltd v New Zealand Natural Pty Ltd [2015] SASC 86 [27] (Dart J).

6. The principles of positive case flow management articulated in O 1 r 4B of the Rules of the Supreme Court will always have a bearing on the outcome of an application for security for costs.

7. When an application for security for costs is made in a defamation action great care must be taken to avoid 'closing the door' unjustly against a plaintiff striving to vindicate their reputation.[45]

Disposition

[45] Bhatia v Gill [2022] WASC 341 [2] (Kenneth Martin J).

1. I am mindful of the reluctance of courts to make orders for security for costs against impecunious plaintiffs especially in defamation actions but in my judgment the matters to which I refer below, taken in combination, justify making the order for security sought by the defendants.

2. First, there has been no material delay by the defendants in bringing the application that might operate as a discretionary bar to making an order for security.  True it is that the application for security was not made until approximately five years after the action was commenced but the plaintiff delayed serving the writ for almost one year, he then amended the writ to join additional parties and it was not until April 2021 that the plaintiff had prepared a statement of claim to which the defendants were required to plead.  The defendants put the plaintiff on notice that an application for security might be made after the defence was filed.  Other than for the filing of a reply by the plaintiff on 17 June 2021 and the provision of discovery no significant procedural steps were taken by the plaintiff between the filing of the defence and the making of the security for costs application on 18 August 2022.

3. Secondly, the existence of interlocutory costs orders in the defendants' favour with respect to which the plaintiff has failed to engage with the defendants and the fact that the plaintiff is now bankrupt satisfy me that there is no realistic prospect that the plaintiff will be able to satisfy any adverse costs orders made at the conclusion of the proceedings.

4. Thirdly, there is no evidence to support the conclusion that the plaintiff's impecuniosity had been brought about by the defendants' conduct.

5. Fourthly, the plaintiff has conducted the litigation in a manner that had imposed additional costs on the defendants.  By 'additional costs' I mean costs over and above those which in the ordinary course of litigation a defendant would be expected to incur.  While I take into account that latitude is to be extended to the plaintiff because he is a self‑represented litigant, in my view he has conducted the litigation in a manner calculated to increase the burden of costs on the defendants.  As he is self-represented the plaintiff does not have an equivalent burden.  The conduct of the plaintiff to which I have referred is as follows:

   (a)The plaintiff's multiple attempts at pleading his claim (I refer to the versions of the statement of claim referred to in the extract of the judgment of Le Miere J at [6]).  The defendants were required to incur the costs of considering and responding to each version of the statement of claim as well as the costs of strike out applications.

   (b)The plaintiff's application for leave to bring an application for summary judgment against the defendant. 

   (c)The plaintiff's misconceived application for judgment on admissions that was dismissed by me on 31 January 2023 involved a misunderstanding of the applicable rules.  Nevertheless, it required the defendants to respond to the application and incur costs that they should not have been required to incur.  As noted earlier the plaintiff has made a further application for judgment on admissions.

   (d)The plaintiff attempted to issue subpoenas for the purposes of resisting the application for security and advancing his application for judgment on admissions but did not attend a directions hearing listed on 22 December 2022 to consider his request for the issue of subpoenas.  The defendants, however, were put to the costs of attending that hearing.

   (e)The defendants were required to incur the costs of preparing for the hearings on 5 December 2022, 16 February and 23 August 2023 only for the hearings on those dates to be rendered ineffective by the plaintiff giving late notice that he would not be attending the hearings.

   (f)The plaintiff has a propensity to advance untenable arguments seemingly in part due to a misunderstanding of both procedural rules and substantive law and in part due to his conviction that any decision adverse to his interests is a consequence of racism or judicial corruption.  His insistence that the reasons for decisions of the Federal Circuit Court, the Federal Circuit and Family Court, and the Federal Court are false documents exemplifies the plaintiff's propensity to advance untenable arguments.  I have already acknowledged that the plaintiff is self-represented but he deposes that he is a registered migration agent and it is surprising that a person who must have some familiarity with legal concepts for the purposes of his profession should advance such untenable propositions.

   (g)The plaintiff has conducted himself in relation to the defendants' solicitors in a manner that required the defendants to apply for an order that the plaintiff communicate with the defendants' solicitors solely in writing.  The defendants were required to incur the costs of an application necessitated by the plaintiff's inability to communicate with the defendants' solicitors without losing objectivity and compromising that channel of communication.

   (h)The plaintiff appealed against the order made on 16 February 2023 to the effect that he communicate with the defendants' solicitors only by email (something to which at the hearing on 31 January 2023 he did not object) but failed to file an appellant's case that complied with the rules and his appeal was dismissed.

1. Fifthly, the seventh anniversary of the commencement of this action is just over a week away.  The plaintiff was responsible for the delay that occurred in progressing this action between 2016 and 2021.  Viewed against that background the plaintiff's professed unavailability for a resumption of the hearing of the application for security for costs in March, April, June and July 2023 give rise to a concern about whether the plaintiff has the capacity and will to bring this action to trial.

2. Sixthly, I am quite satisfied that $50,000 is not an excessive amount to be provided by way of security.  As the case manager my assessment is that $50,000 is a comparatively modest amount having regard to the work that the defendants' lawyers have done since the date of the application and will be required to complete to do between now and the conclusion of the trial. 

Conclusion

1. For the reasons given, the defendants' application for security for costs in the sum of $50,000 is granted.  The defendants must file a minute of any orders for costs sought by them supported by submissions not exceeding two pages by 6 September 2023 and the plaintiff must file a minute of the costs orders he contends should be made supported by submissions not exceeding two pages by 13 September 2023.

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

30 AUGUST 2023