OZE-IGIEHON v Public Transport Authority Western Australia - [2018] WADC 96

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   OZE-IGIEHON -v- PUBLIC TRANSPORT AUTHORITY WESTERN AUSTRALIA [2018] WADC 96
CORAM:   REGISTRAR KINGSLEY
HEARD:   10 JULY 2018
DELIVERED          :   10 AUGUST 2018
FILE NO/S:   CIV 3322 of 2016
BETWEEN:   MIKE OZE-IGIEHON
Plaintiff

AND

PUBLIC TRANSPORT AUTHORITY WESTERN AUSTRALIA
First Defendant

WLISON SECURITY PTY LTD
Second Defendant

FAIRFAX DIGITAL AUSTRALIA AND NEW ZEALAND PTY LIMITED
Third Defendant

Catchwords:

Order 25 Rules of the Supreme Court 1971 - Security for costs - Impecunious plaintiff - Turns on own facts

Legislation:

Rules of the Supreme Court 1971

Result:

Order for security made

Representation:

Counsel:

Plaintiff	:	In person
First Defendant	:	No appearance
Second Defendant	:	Mr RJS French
Third Defendant	:	Mr MC Goldblatt

Solicitors:

Plaintiff	:	Not applicable
First Defendant	:	SRB Legal
Second Defendant	:	National Workplace Lawyers
Third Defendant	:	Carmel Galati

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

Black v Eastern Goldfields Mining Co Pty Ltd (unreported) WASC Library 930039 delivered 16 December 1922
Bosun Pty Ltd (in liq) v Makris [2003] FCA 100
Chang v Comcare Australia [1999] FCA 1677
Mabrouk Minerals Pty Ltd v Mabrouk Holdings Ltd [2008] WASC 132
Oze‑Igiehon v Raiser Operations [2016] WADC 174

REGISTRAR KINGSLEY:

Introduction

By a writ of summons filed 8 September 2016 the plaintiff claimed damages for defamation against each of the defendants. The first and second defendants' filed defences through October 2016. The third defendant filed a defence in December 2016.
In appropriately the plaintiff entered the action for trial on 27 October 2016 and by order of a registrar made 19 April 2017 the entry for trial was countermanded.
There was an application by the third defendant to strike out the statement of claim, which was successful, and an application for specific discovery. Orders were made on the application on 7 March 2018.
The action has proceeded to a pre-trial conference and to a listing conference when on 9 April 2018 the action was listed for a five day trial commencing 26 November 2018.
On 6 April 2018 the third defendant brought an application for Security for Costs. On the same day the second defendant has brought an application for Security for Costs.
The application is brought pursuant to O 25 Rules of the Supreme Court 1971 (RSC). Pursuant to that order a court made an order for security for costs against 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 that maybe awarded against them. The discretion of the court to order security is unfettered discretion and depends upon an examination of all relevant circumstances which varies from case to cases and the weight to be given to any circumstance in a particular case depends not only on its own intrinsic persuasives but upon the impact of the other circumstances which have weighed (Mabrouk Minerals Pty Ltd v Mabrouk Holdings Ltd [2008] WASC 132 [57]. Order 25 r 2 RSC suggests that when considering the ground of security the court shall take into consideration the prima facie merits of the claim, property within the jurisdiction to satisfy any order for costs and whether the normal processes of the court would be available within jurisdiction.
There does not appear to be any serious contention that the plaintiff is impecunious. The second defendant submits, citing Bosun Pty Ltd (in liq) v Makris [2003] FCA 100, that the principle upon which the discretionary power to make an order for security rests is that the system of justice assumes that the interests of justice are best served if a successful litigant will receive his litigation costs and the unsuccessful party will pay them. Thus a court seeks to achieve a balance between ensuring adequate and fair protection is provided to the defendant, and avoiding the injustice to an impecunious plaintiff if an order were made. The third defendant's counsel submitted that there is a disinclination to order a natural person to provide security in absence of some factor in addition to impecuniosity. One such factor justifying the making of an order is the plaintiff's lack of prospects of success (Chang v Comcare Australia [1999] FCA 1677).
The action has gone through a number of interlocutory processes and has been listed for trial. Delay maybe a significant discretionary consideration militating against making an order for security. The third defendant's counsel submitted that delay is not relevant unless there is some time limitation or the plaintiff can establish that there has been a delay that cannot be satisfactorily explained or more importantly the plaintiff adversely affected by or prejudice by that delay (Black v Eastern Goldfields Mining Co Pty Ltd (unreported) WASC Library 930039 delivered 16 December 1922). There is no evidence that the plaintiff has been adversely affected or prejudiced by the delay.
Much of the submissions have focused on the merits of the plaintiff's claims.
The plaintiff in his second re-amended statement of claim pleads that he worked under contract for the first defendant as an employee of the second defendant. In 2009 the plaintiff became a transit officer with the first defendant.
The plaintiff pleads that on 22 March 2016 the plaintiff entered into a deed of settlement with the second defendant and that this deed of settlement contained a clause baring either party from disparaging the other.
The plaintiff pleads that the third defendant published on its on‑line news site a news story titled 'Perth man suing Uber over driving tired claims caught sleeping at last job'. At par 19 of the statement of claim the plaintiff gives particulars of the defamation and at par 20 pleads that the various statements in their natural ordinary meaning are capable of conveying various meanings to a reader. The plaintiff goes on to particularise those meanings. The plaintiff goes onto plead that he defendants are jointly and severely liable for the damages caused to the plaintiff.
In addition there is a claim against the second defendant for breach of contract and confidentialities. The plaintiff pleads that the terms of the deed of settlement between the plaintiff and the second defendant included a clause that the second defendant would not authorise or knowingly permit the disclosure of the terms of the deed. The plaintiff pleads that the second defendant breached the terms of the deed settlement by disclosing the terms to the first defendant.
The third defendant submits it has a strong case that will establish at trial that the plaintiff slept during working hours whilst working for the first defendant as a transit security guard. Principally the third defendant submits that a witness to the plaintiff's conduct Claire Young who was the plaintiff's shift partner at the time in the employ of the second defendant has made a witness statement to the Fair Work Commission detailing the occasions of which the plaintiff slept on the job. This evidence is supported by photographs taken by Ms Young at the time.
Further, in proceedings brought by the plaintiff against Uber (Oze‑Igiehon v Raiser Operations [2016] WADC 174 (the Uber proceedings)) where the plaintiff denied falling asleep or suffering fatigue Uber called Ms Young as a witness. In the Uber proceedings Wager DCJ accepted Ms Young's evidence of the plaintiff sleeping on the job noting that Ms Young who was reluctant to give evidence had been subpoenaed by Uber. Counsel for the third defendant submits there is no reason to doubt that similar evidence by Claire Young would not also be accepted by the court.
The third defendant's counsel submits that the second defendant had dismissed the plaintiff for serious misconduct on 3 November 2015 and that on 14 November 2015 Uber had deactivated the plaintiff's account. The article was published on 19 May 2016.
The third defendant's counsel submits that the real reason the plaintiff is unemployed is a psychiatric disorder for which he is suffering as a result of being summarily dismissed by the second defendant and having his account with Uber deactivated. The third defendant's counsel highlights that by 20 April 2016 the plaintiff's clinical psychologist had diagnosed the plaintiff as having a major depressive disorder and generalised anxiety disorder and that on 16 May 2016 the plaintiff in an email to the Ride to Shared Drivers Association of Australia stated that 'I am currently taking treatment for severe mental depression'.
The third defendant's counsel submits that there is a cogent evidence unlikely to be controverted by the plaintiff as he was unable to do so in the Uber proceedings, but he slept whilst on duty. It is then highly likely that a court will find that the third defendant has justified the three imputations as to competence of the plaintiff.
In the relation to the imputation that the plaintiff a rude person the third defendant's counsel submits that there no prospect of the court finding that the words are capable of bearing that meaning. Further in relation to that imputation that the plaintiff is a law breaker counsel for the third defendant submits there is no prospect of the court finding that the words are capable of bearing that meaning.
On the part of the second defendant counsel for the second defendant submits that the second defendant's letter of termination demonstrates that the second defendant terminated the plaintiff's employment in relation to allegations that he slept whilst on duty, was abusive to a fellow staff member and failed to wear the correct uniform whilst on duty. The key factual element is that the plaintiff slept whilst on duty and counsel for the second defendant submits noting the submissions made by counsel for the third defendant, that the defamatory imputations alleged by the plaintiff are in fact true. There may be an issue in relation to failing to wear the correct uniform as the plaintiff submits that he had a medical certificate that suggest need not wear a cap whilst on duty.
Further the second defendant's counsel submits that even if the plaintiff establishes the defamatory imputations the loss attributable to the second defendant would be modest. The second defendant's counsel notes that after the second defendant communicated with the first defendant the first defendant then communicated the information to the third defendant who in turn published that information. The subsequent actions occurred independently of the second defendant.
The second defendant's counsel submits that the limited merit of the plaintiff's claim warrants an order for security even though it may have the effect of stultifying the plaintiff's ability to litigate his claim.
In essence the plaintiff seeks to re-litigate the issues of fact that have found by Wager DCJ in the Uber proceeding. To succeed in his claim against the third defendant the plaintiff would have to persuade a judge that the evidence accepted in the Uber case cannot be now be accepted.
The plaintiff submits that the second defendant's conduct is a causative factor in relation to the plaintiff's mental wellbeing. However, the mental health issues predate the publication of the alleged defamatory article by the third defendant.
Having regard to the fact that the plaintiff's claim does not, in my opinion have a reasonable prospect of success this is an appropriate matter where security for costs ought to be ordered against the plaintiff.
The third defendant has estimated that its cost of the action will be approximately $107,788.00. The third defendant does not provide any guidance as to the quantum of security to assist the court.
The second defendant submits that the security in the sum of $10,000.00 should be made.
A court must always guard against the possibility that an application for security for costs becomes a strategy to stultify a particular claim. On the other hand a court should not allow impecunious person or entity to put unfair pressure on a prosperous company or other litigant. Where a claim which has a reasonable prospect of success would have to be abandoned by an impecunious plaintiff then a court is entitled to refuse to make the order. However, in this case in my opinion the plaintiff's claim has no reasonable prospect of success as against the second and the third defendants.
As I have found that security for costs is warranted and bearing in mind the likely costs overall to be incurred by the third defendant and second defendant in my opinion, in the context, a modest sum of $10,000 would be appropriate.
The orders will be that the plaintiff do provide security for costs in the sum of $10,000 and that the action be stayed as against the second defendant and third defendant until such security is provided.
As the second defendant and third defendant have been successful in their application he plaintiff to pay the costs of the second defendant and third defendant including the reserved costs, such costs to be paid in any event.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
LW
COURT OFFICER
9 AUGUST 2018