Ogbonna v Qantas Airways Ltd [No 6]

[2024] WASC 331

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   OGBONNA -v- QANTAS AIRWAYS LTD [No 6] [2024] WASC 331

CORAM:   TOTTLE ACJ

HEARD:   ON THE PAPERS

DELIVERED          :   9 SEPTEMBER 2024

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 - Proceedings stayed pursuant to order for security for costs - Failure to comply with order - Application to set aside order for security for costs - Application for judgment on the basis of alleged admissions - Application for judgment substantially replicates previous application dismissed on its merits - Applications constitute abuse of process - Turns on own facts

Legislation:

Criminal Code Act 1995 (Cth)

Result:

Application dismissed

Category:    B

Representation:

Counsel:

Plaintiff	:	No appearance
First Defendant	:	No appearance
Second Defendant	:	No appearance

Solicitors:

Plaintiff	:	No appearance
First Defendant	:	No appearance
Second Defendant	:	No appearance

Cases referred to in decision:

Ogbonna v Qantas Airways Ltd [2023] WASC 21

Ogbonna v Qantas Airways Ltd [2023] WASCA 168

TOTTLE ACJ:

Introduction

1. By a minute of orders filed on 31 August 2024 the plaintiff sought orders including the following:

   (1)Paragraphs 1 and 2 of the security for cost orders made on 30 August 2023 be set aside because the defendants' application relied on 'False Commonwealth Documents'; and

   (2)The plaintiff's chamber summons application for 'judgment on admissions' or [sic] otherwise filed on 7 February 2023 (the Application) for the award of general and aggravated damages be determined.

2. These reasons explain why the application will be dismissed on the grounds it is an abuse of process without hearing from the plaintiff.

The plaintiff's evidence

1. The plaintiff has filed an affidavit sworn by him on 31 August 2024 in support of the application for the orders sought by his minute of 31 August 2024. The contents of the affidavit comprise submissions directed to establishing that the security for costs orders made on 30 August 2024 should not have been made. Among the submissions relied on by the plaintiff is the contention that decisions of the Federal Court of Australia and the Federal Circuit and Family Court of Australia relied on by the defendants were 'False Commonwealth Documents' pursuant to s 143.3 of the Criminal Code Act 1995 (Cth).

The proceedings are stayed and the application is an abuse of process

1. Paragraphs 1 and 2 of the 'security for costs orders made on 30 August 2023' were in the following terms:

   (a)By 13 September 2023 the plaintiff must pay into court the sum of $50,000 as security for the defendants' costs.

   (b)The proceedings be stayed until such time as the plaintiff provides security for costs in accordance with order (1).

2. The plaintiff applied for leave to appeal against the security for costs orders made on 30 August 2023.  The application for leave to appeal was dismissed on 24 November 2023.[1]

   [1] Ogbonna v Qantas Airways Ltd [2023] WASCA 168.

3. The plaintiff has not paid into court the sum of $50,000 (or any sum) as security for the defendants' costs.

4. The proceedings are stayed pursuant to the terms of the orders made on 30 August 2023.  The plaintiff's application for leave to appeal against those orders has been dismissed.  The plaintiff's contention that the orders should be set aside because the defendants' application relied on 'False Commonwealth Documents' self-evidently lacks any merit.  Having regard to these circumstances, the application is plainly an abuse of process.  The defendants should not be required to respond to an application so devoid of merit and neither should the court be required to divert its scarce resources to hearing such an application.

The application for judgment on admissions is an abuse of process

1. In December 2022 the plaintiff applied for judgment against the defendants on the basis of admissions he deemed them to have made by reason of their response to notices to admit facts served by him.  The application was varied in January 2023 to rely on the defendants' response to a later notice to admit facts served by the plaintiff.  The application for judgment was dismissed on 31 January 2023 and reasons for the dismissal of the application were published on 6 February 2023.[2] 

   [2] Ogbonna v Qantas Airways Ltd [2023] WASC 21.

2. By a chamber summons filed on 7 February 2023 the plaintiff made a further application for judgment for admissions based on the defendants' response to a notice to admit filed on 3 February 2023.  The application by chamber summons filed on 7 February 2023 was relied on by the plaintiff in his appeal against the security for costs orders.  The relevant grounds of appeal and submissions were summarised by the Court of Appeal and dealt with as follows:[3]

   Grounds 3, 4 and 5 and the supporting submissions are difficult to follow.  They appear to contend, in substance, that the primary judge should have refused to order security for costs because the appellant was entitled to judgment on admissions by reason of the respondents' failure to adequately respond to the notice to admit filed on 3 February 2023. There is no reasonable basis for that contention.  As the primary judge correctly recognised, the failure to respond to a notice to admit satisfactorily or within a particular time does not give rise to deemed admission of facts specified in the notice.  The judge had ruled against the appellant on this point, and the further application for judgment on admissions filed on 7 February 2023 in the face of the earlier ruling was, prima facie, an abuse of the court's process.  The primary judge was not required to deal with the application for judgment on admissions before determining the respondents' security for costs application.  The application for judgment on admissions provided no proper basis for the primary judge to refuse to order the appellant to pay security for the respondents' costs of the primary proceedings. (Emphasis supplied)

   [3] Ogbonna v Qantas Airways Ltd [2023] WASCA 168, [28].

3. Quite apart from the fact that the proceedings are stayed, the putative application for judgment on admissions is an abuse of process because it seeks to reargue the substance of the judgment on admissions application that was dismissed on 31 January 2023 for the reasons delivered on 6 February 2023.

Conclusion

1. The plaintiff's application filed on 31 August 2024 will be dismissed.

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

CD

Associate to the Honourable Justice Tottle

9 SEPTEMBER 2024