Federal Court of Australia

Ogbonna v Government of Western Australia (No 5) [2023] FCA 935

ORDERS

THE COURT ORDERS THAT:

1.    There be leave to the applicant to file the proposed re-amended statement of claim, amended interlocutory application and new outline of submissions which were lodged on 1 August 2023.

2.    The applicant's application for summary judgment is refused.

3.    The applicant's application for further orders as stated in the amended interlocutory application dated 31 July 2023 is refused.

4.    The application is summarily dismissed pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth).

5.    The applicant do pay the costs of the proceedings such costs to be assessed by a registrar on a lump sum basis if not agreed.

6.    Any further document that is sought to be filed by the applicant acting on his own behalf (including any further originating process) that makes an allegation based upon any form of publication or republication and which names as respondents the third respondent or any of its associated entities or any existing or former officers, employees, servants or agents of the third respondent or any of its associated entities or the State of Western Australia or any statutory authority, entity or emanation of the Crown in right of the State of Western Australia or any officer or employee of those parties (whether or not also naming other respondents) shall be brought to the attention of a judge of the Court for the purpose of determining whether an order should be made pursuant to r 2.27 (e) or (f) of the Federal Court Rules 2011 (Cth) that the document will not be accepted for filing.

7.    Order 3 of the orders made on 22 June 2023 which states that no party is to communicate with the Court in relation to these proceedings otherwise than by email addressed to perth.registry@fedcourt.gov.au shall continue in effect despite the summary dismissal of the proceedings.

8.    Liberty is reserved to the applicant to apply to discharge orders 6 or 7 or both of them. If the applicant wishes to exercise that liberty, he may do so by indicating by email to the address stated in order 7 that he seeks to discharge the orders, stating the grounds upon which he wishes to do so. The applicant must also provide an affidavit as to any factual matters that he relies upon to support the discharge of the orders. Unless otherwise ordered, any such application will be considered on the papers.

9.    Liberty is reserved to the respondents to apply to discharge order 7. If a respondent wishes to exercise that liberty the respondent may do so by indicating by email to the address stated in order 7 that the respondent seeks to discharge the orders and stating the grounds upon which it wishes to do so. Unless otherwise ordered, any such application will be considered on the papers.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

COLVIN J:

1    By proceedings commenced in August 2021, Mr Ogbonna claims to have been defamed. The proceedings were commenced against three named respondents, namely the Government of Western Australia, the Western Australian Police Force and Programmed Integrated Workforce Ltd (Programmed). Subsequently, the Western Australian Police Force was removed as a named respondent.

2    Applications for summary dismissal have been brought by the respondents. In the alternative, they seek orders striking out paragraphs of the statement of claim. Mr Ogbonna has brought an application for summary judgment on his claims. The procedural history of the progression of those competing applications has been somewhat extended, but need not be recounted.

3    The point has been reached where Mr Ogbonna seeks to support his summary judgment application on the basis of a proposed re-amended statement of claim (Proposed Claim) and also seeks to expand his interlocutory application (Proposed Amended IA). He also seeks to rely upon a new outline of submissions dated 31 July 2023 (New Outline). By reason of case management orders made on 22 June 2023, Mr Ogbonna needs leave to rely upon these documents. The reasons why a requirement for leave was imposed were described in Ogbonna v Government of Western Australia (No 4) [2023] FCA 686.

4    The competing applications were listed for interlocutory hearing on the basis that Mr Ogbonna would be afforded an opportunity to make oral submissions at that time and if the view was formed that there was merit in his application, or it was otherwise necessary to hear from counsel for the respondents, then the hearing would be adjourned to hear those oral submissions. Therefore, the respondents having filed written submissions, did not appear at the hearing of the applications. Mr Ogbonna also did not appear. The matter was called three times in the precinct of the Court. There was still no appearance.

5    As Mr Ogbonna had indicated that he was content for the question whether he should be given leave to file the Proposed Claim, the Proposed Amended IA and the New Outline to be dealt with on the papers and having regard to the fact that the competing applications had been listed on the basis that appearance for the respondents was not required and having regard to the fact that Mr Ogbonna on two previous occasions had not appeared at a hearing to determine the competing interlocutory applications, the decision of the Court was reserved on both interlocutory applications.

6    At about the time the Court was adjourned, Mr Ogbonna sent an email to the Court saying that he would not be attending because he said he was suffering from a serious migraine due to stress. He said that he had filed documents that await processing. The latter statement appears to be a reference to the Proposed Claim, the Proposed Amended IA and the New Outline which were lodged for filing at 4.26 pm on 1 August 2023 (the day before the hearing). This is not the first time that Mr Ogbonna has failed to attend a scheduled hearing.

7    I have considered whether it would be appropriate to relist the matter. Although Mr Ogbonna appears on his own behalf, he is an experienced litigant and is familiar with the processes of the Court.

8    Having regard to the circumstances I have described and having regard to the long history of the matter during which Mr Ogbonna has been afforded every opportunity to amend his statement of claim and answer written submissions from the respondents, I am satisfied that Mr Ogbonna has been given sufficient opportunity to present his case as to the issues raised by the interlocutory applications. Further, as I am persuaded that he should have leave to rely upon the New Outline (see below), the matters he wishes to advance will be before the Court. The New Outline presents as a considered document which references the affidavits and matters of law that Mr Ogbonna wishes to raise.

Outcome

9    For the following reasons, there should be leave to Mr Ogbonna to rely upon the Proposed Claim, the Proposed Amended IA and the New Outline. Mr Ogbonna's interlocutory application should be dismissed and the applications by the respondents for summary dismissal should be upheld. Mr Ogbonna should be ordered to pay the costs of the proceedings. It is appropriate for those costs to be assessed on a lump sum basis. There should be further orders to protect the integrity of the process of the Court.

Leave to file the Proposed Claim, the Proposed Amended IA and the New Outline

10    Where, as here, an application is brought for summary dismissal on the basis that a pleading is deficient in a number of respects, it is not uncommon for a party to seek to address the matters raised by preparing a proposed amended statement of claim. In the interests of ensuring the Court is considering the substance of the case that is sought to be advanced, it is appropriate for the Court to receive the proposed amended form of pleading on the basis that it is a pleading upon which Mr Ogbonna seeks to rely if the case is to proceed.

11    For similar reasons, it is appropriate to grant leave to allow Mr Ogbonna to file the New Outline which refers to the Proposed Claim, especially in circumstances where Programmed has filed substituted submissions in support of its application (which were prepared to address the statement of claim as amended after it brought its summary dismissal application).

12    As to the Proposed Amended IA, I will give leave to rely upon that document to ensure that Mr Ogbonna is able to advance all of the claims that he seeks to make.

13    Leave is given on the basis that it would not be appropriate to grant any of the relief in the Proposed Amended IA without first affording an appropriate opportunity to the respondents to answer the additional applications raised by the amendments. However, for the reasons that follow the Proposed Amended IA should be dismissed and therefore there is no need to afford that opportunity.

The nature of the defamation claim

14    In the New Outline, Mr Ogbonna says that his case consists of two claims of defamation based upon the following:

(1)    a statement allegedly made on 7 November 2017 by an employee of Programmed to the Western Australian Police Force, said to be the original publication;

(2)    a statement allegedly made to Mr Ogbonna's then spouse on 7 November 2017 by two identified police officers who attended at his residence, said to be a republication; and

(3)    a statement allegedly made on 31 August 2020, by an unidentified police officer publishing a running sheet on the 'WAPOL Incident Management System' or 'IMS' which was allegedly accessible across Australia via the 'National Police Reference System' or 'NPRS', also said to be a republication.

15    In the Proposed Claim, the 'first matter complained of' is the publication of the running sheet on the IMS which is said to be accessible throughout Australia by means of the NPRS. The publication made on 31 August 2020 is alleged to be continuing.

16    The 'second matter complained of' is the alleged republication when the police officers attended at his residence and spoke to his then spouse.

17    The above articulation of the case is different to that previously expressed by an earlier version of the statement of claim (as described in Ogbonna v Government of Western Australia (No 3) [2022] FCA 1019 at [4]-[13]). Significantly, the description of the case in the New Outline does not claim that there was any defamatory statement made on 7 or 8 April 2021 to the occupants of a car in which Mr Ogbonna was a passenger when the car was stopped by a police officer at Port Augusta in South Australia. The different articulation of the case in the New Outline is consistent with the terms of the Proposed Claim which alleges that there was a continuing publication by reason of the running sheet being on the IMS (and accessible by means of the NPRS) rather than any publication of those contents by the police officer to the occupants of the car.

18    As to the defamatory words said to have been published, they are alleged in the following terms in the Proposed Claim:

(1)    The words allegedly published by the two police officers on 7 November 2017 are said to have been:

We came on Mr Celestine Ogbonna, someone called us to say that he has been making rambling statements and is suicidal, the reason we were dispatched as a matter of urgency to attend to check on his mental state

(2)    The words allegedly included on the running sheet published on the IMS are said to have been:

Warnings: Not to issue firearm, Has medical condition

19    For present purposes I assume that the allegation made is that the words allegedly spoken by the police officers were a republication of words communicated by an employee of Programmed to someone at the Western Australian Police Force that Mr Ogbonna has been making rambling statements and is suicidal. Further, the warning included in the running sheet is somehow alleged to be a repetition or republication of what is alleged to have been communicated by the employee.

20    As has been indicated above, the Proposed Claim also includes an allegation that the warning on the running sheet was published to a South Australian Police Officer on 7 or 8 April 2021 at Port Augusta. The basis for that plea appears to be a claim that the police officer accessed that information when doing a driver's licence check. The basis for the claim that the information was accessed is an allegation that the police officer mentioned the restraining orders on that occasion (being information only available from the database). There is no allegation that there was a republication of the allegedly defamatory information said to have been recorded as warnings on the running sheet.

Evidence relied upon by Mr Ogbonna

21    Mr Ogbonna relies upon three affidavits sworn by him dated 17 May 2022, 29 August 2022 and 19 June 2022 (said to have been filed on 23 June 2023).

22    In the first affidavit Mr Ogbonna made various allegations (including allegations that the application by the State to strike out his statement of claim was 'untenable', that the affidavits relied upon by the State were 'fraudulent in nature' and that the interlocutory applications to summarily dismiss his claim were 'frivolous, vexatious, and fraudulent in nature' and have no reasonable prospects of success). He deposed to his belief that there was no bona fide defence to his claim. The affidavit did not otherwise contain evidence in a form that established any of the allegations made in his claim.

23    In the second affidavit, Mr Ogbonna sought to rely upon a notice to admit said to have been served on the respondents on 16 August 2022. He alleged that a statement made in an affidavit filed by the State to the effect that a statement in an unsigned medical summary that Mr Ogbonna suffered from asthma and claustrophobia was a lie and sought to introduce countervailing evidence. He also produced a copy of the running sheet. He said that he had contested all family violence restraining order applications and produced a copy of a transcript of a hearing of an application and produced a certificate cancelling a restraining order that was dated one year after an order had been made.

24    Mr Ogbonna also made allegations of fraud by Programmed and its employees in respect of matters unrelated to the defamation claims. He identified a person who he considered to be the 'original publisher'. He made various allegations of corruption and fraud. He also advanced various argumentative responses to affidavits filed by the State and Programmed, including allegations of corrupt and malicious acts, breach of codes of conduct, intentional dishonesty and breach by lawyers of their duties to the Court all of which were expressed in the most general terms. Having regard to the terms of the affidavit that I have summarised, it is obvious that the affidavit is an abuse of process.

25    The third affidavit, is not before the Court. It may be that Mr Ogbonna has included the affidavit amongst material that he has sent to the Court from time to time but it is not an affidavit in respect of which he has sought and obtained leave in accordance with case management orders that were made on 22 June 2023 which required leave of the case managing judge before any document could be filed in the proceedings by any party (noting that Mr Ogbonna claims to have filed the affidavit on 23 June 2023).

26    By way of submission, Mr Ogbonna also sought to rely upon admissions alleged to have arisen by reason of an alleged failure to respond to a notice to admit filed on 1 June 2023. I have already determined that the notice to admit is an abuse of process: Ogbonna v Government of Western Australia (No 4) at [6], [15]. Further, regard to the contents of the notice to admit reveals that the matters in respect of which it seeks 'admissions' are not properly the subject of such a notice.

Relevant principles as to summary determination of proceedings

27    The test for summary determination of proceedings is whether the Court is satisfied that the party against whom the application is brought has no reasonable prospect of successfully defending or prosecuting the proceedings, as the case may be: s 31A of the Federal Court of Australia Act 1976 (Cth). In the case where summary judgment is sought by the party bringing the claim, a defence need not be hopeless or bound to fail in order for the Court to be so satisfied: s 31A(3). Therefore, the test differs from that which previously applied. Nevertheless, the power to summarily dismiss an action should not be exercised lightly: Trkulja v Google LLC [2018] HCA 25; (2018) 263 CLR 149 at [22] (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ).

Application for summary judgment by Mr Ogbonna

28    In the circumstances I have described, the evidence advanced by Mr Ogbonna has not established the factual basis for his application for summary judgment. For reasons which follow, it also has substantive legal defects. Therefore, Mr Ogbonna's summary judgment application must be dismissed.

Evidence relied upon by the respondents

29    The respondents each relied upon their own affidavits as well affidavits filed by the other of them. Those affidavits were deposed by Mr Georg Raithel, a senior assistant state solicitor; Mr Justin Budden, a police sergeant; Mr Mark Jones, a police constable; Mr Damien Brown; Ms Rachel Dawson; and Ms Elizabeth Mussared (who deposed two affidavits).

Application for summary dismissal by Programmed

30    It was submitted for Programmed that Mr Ogbonna cannot succeed on his case for various reasons including a contention that there is no viable pleading or evidence of any publication that would attract the jurisdiction of the Federal Court.

31    Whether the jurisdiction of the Court is invoked does not depend upon considering only the pleaded claim. It requires regard to the whole of the matter, that is the controversy. In this case the controversy includes the claim that there has been a republication throughout Australia, including in the Australian Capital Territory and the Northern Territory of what was said by an employee of Programmed. The republication is alleged to have occurred by means of the running sheet being uploaded to the IMS which is said to be accessible throughout Australia.

32    The Proposed Claim makes express reference to publication in Australian territories. An allegation of that kind, unless colourable, is within jurisdiction: Oliver v Nine Network Australia Pty Ltd [2019] FCA 583. A non-colourable claim that is liable to be struck out will give rise to jurisdiction. A claim is colourable where it is made for the improper purpose of fabricating jurisdiction such that it was not made bona fide: Rana v Google Inc [2017] FCAFC 156; (2017) 254 FCR 1 at [22]. Where it is plain that the true extent of the controversy between the parties concerns matters that do not include the aspect that is said to be a federal matter, the claim may be colourable because it may be inferred that it has been added simply for the purpose of seeking to establish jurisdiction. The foundation for jurisdiction in such a case would not be bona fide even though, on its face, there would be jurisdiction as to the federal matter if properly part of the true controversy. In the present case issues arise as to whether the claim by Mr Ogbonna is bona fide in a different sense, especially having regard to the extent to which he has been intent upon making very serious allegations without advancing any evidentiary foundation for them. However, I am not persuaded that the resort to the Court's jurisdiction on the basis that the controversy concerns what is alleged to be a national republication is not a bona fide invocation of federal jurisdiction in respect of the controversy bounded by the claims that Mr Ogbonna seeks to agitate.

33    Programmed otherwise advanced a long list of reasons as to why the claim against it by Mr Ogbonna had no reasonable prospects. Some of those were pleading points. The complaint as to failure to plead precisely what was said to have been the original publication was in that category. I will focus upon the claims which were more fundamental.

34    The fundamental problem for Mr Ogbonna is the disconnect between his claim as to what was said by the officers on 7 November 2017 said to be a repetition of a statement by an employee of Programmed (which was that he had been making rambling statements and was suicidal) and the form of the alleged republication (which is a warning not to issue a firearm and that he has a medical condition). On the face of it, the latter is not a republication of the former. There is evidence from the State to the effect that the warning has nothing to do with what was said on 7 November 2017. Rather, as to the firearm, it is a standard warning that is expressed whenever a restraining order has been granted against a person. As to the reference to a medical condition it reflects a record made on 18 January 2012 when the applicant was held in the Perth watch house to the effect that Mr Ogbonna suffers from asthma and is claustrophobic. The context deposed to supports that evidence and no credible contention has been raised by Mr Ogbonna to dispute the evidence.

35    There is a further problem that Mr Ogbonna does not claim, in terms, that the running sheet has been downloaded through the NRPS. Rather, his pleading indicates that he relies upon the fact that the South Australian police officer referred to the 'restraining orders' in the presence of the other occupants of the car. There is no suggestion that the police officer mentioned the warnings on that occasion. In the face of evidence from the State that the information on the running sheet is not accessible nationally, there is no reasonable basis for the allegation that the warning on the running sheet was published to the police officer.

36    Mr Ogbonna also includes a claim by amendment that the 'defamatory material' on the running sheet was published when it was conveyed to his support person when he attended the police station on the day he received the restraining orders, being 3 September 2020. There is evidence from the police officer who served the restraining order that running sheets are only for police and are not ordinarily provided to recipients of restraining orders and that he could not recall any instance where he had provided a running sheet to someone who was not a police officer. There is no evidence from the support person to support the claim.

37    Further, the alleged republication to the support person is statute barred. It does not arise out of the same facts as those originally alleged which concerned publication by means of the IMS being accessible nationally through the NRPS. The claim that there was a republication to Mr Ogbonna's support person when he received the restraining orders is an entirely different form of allegation. Therefore, it is not a claim that relates back to the date of commencement of the proceedings. It is obviously statute barred having been added by amendment dated 26 April 2022 (filed on 28 April 2022) more than 1 year after the alleged publication in circumstances where there is no basis for the claim to take effect as if it had been commenced within time: Sydney Subdivision Pty Ltd (in liq) v Chow [2023] FCA 8 at [35]-[47].

38    For those reasons, the claim by Mr Ogbonna is hopeless and must be dismissed. It is not necessary to consider the alternative contentions of abuse of process and the pleading points or the alternative aspects of the application which sought orders striking out particular parts of the pleading if the application for summary dismissal was not successful.

Application for summary dismissal by the State

39    The State Solicitor for Western Australia appeared for the respondent named as the Government of Western Australia and took no point as to the way in which the respondent was identified.

40    The submissions for the State characterised the claim by Mr Ogbonna as seeking to resurrect historical matters that occurred on 7 November 2017 as the basis for a claim. He was said to have done so by alleging the repetition and republication of a defamatory statement made on that date in a running sheet dated 30 August 2020. The running sheet (as annexed to the pleading) was alleged to have been uploaded 'leading to a widespread, instantaneous and continuing form of publication'. For reasons that have been given, I accept the State's characterisation of the case as seeking to resurrect matters that occurred in 2017.

41    For the reasons given in relation to the application by Programmed, the application by the State for summary dismissal must be upheld.

Other orders sought by the Proposed Amended IA

42    The Proposed Amended IA, which I have received as an amended interlocutory application, sought the following further orders in addition to summary judgment:

(1)    a declaration that the respondents had contravened certain provisions of the Criminal Code Act 1995 (Cth);

(2)    the Western Australian Police Force be ordered to provide information on the identity of the 'original publisher' being the employee of Programmed alleged to have made the defamatory statement on 7 November 2017;

(3)    an order that the respondents pay exemplary damages 'for their wilful acts that were mischievous, fraudulent, oppressive, wanton or grossly reckless';

(4)    an order that the Western Australian Police Force amend its records to remove any defamatory statement from public documents, records and 'from archives and/or websites';

(5)    judgment in favour of Mr Ogbonna against the first respondent's admissions by notice to admit;

(6)    judgment in favour of Mr Ogbonna against the third respondent's liability as the original publisher having admitted the running sheet included the warning as pleaded and for the subsequent republication by the first respondent; and

(7)    interest on general damages and aggravated damages.

43    As to (3), (5), (6) and (7) for reasons that have been given, Mr Ogbonna is not entitled to any orders by way of judgment on his claim.

44    As to (1), there is no such claim in the proceedings nor could there be at the instigation of Mr Ogbonna.

45    As to (2), I have previously ruled that any such applications for disclosure would be considered after the applications for summary dismissal have been determined because the resolution of those applications did not turn upon whether Mr Ogbonna was able to identify any such person. For that reason, I have not addressed submissions by the third respondent which might be founded upon insufficient identification of the alleged 'original publisher'.

46    As to (4), no basis was advanced to support any such order.

Matters not determined

47    Amongst other things, these reasons do not address whether the statement allegedly made to the police on 7 November 2017 (and its alleged republication to his wife at Mr Ogbonna's residence) might be defamatory. They proceed on the assumed basis that there is arguable merit in that contention.

Conclusion and orders

48    For reasons that have been given, Mr Ogbonna's application must be summarily dismissed. As his claims have been wholly unsuccessful it is appropriate that they be dismissed with costs. Having regard to the stage of the proceedings and in the interests of efficiency and avoiding, so far as possible, a satellite dispute as to costs, I will order that the costs be assessed by a registrar on a lump sum basis if not agreed.

49    Having regard to the hopeless nature of the case advanced by Mr Ogbonna, the unfounded serious allegations which he has persisted to express in the course of the conduct of the proceedings against all involved, the formulation of the additional claims that Mr Ogbonna sought to raise by the Proposed Amended IA and his behaviour in repeatedly resorting to the same procedure despite previous rejection which has been manifest in his approach to the notice to admit procedure, I consider it appropriate to make further directions in the interests of justice and the integrity of the Court's own processes.

50    There should be an order that any further document that is sought to be filed by Mr Ogbonna acting on his own behalf (including any further originating process) that makes an allegation based upon any form of publication or republication and names as respondents any of Programmed, any of its associated entities or any of their existing or former officers, employees, servants or agents or the State of Western Australia or any statutory authority, entity or emanation of the Crown in right of the State of Western Australia or its officer or employees (whether or not also naming other respondents) shall be brought to the attention of a judge of the Court for the purpose of determining whether an order should be made pursuant to r 2.27(e) or (f) of the Federal Court Rules 2011 (Cth) that the document will not be accepted for filing.

51    In addition, order 3 of the orders made on 22 June 2023 which states that no party is to communicate with the Court in relation to these proceedings otherwise than by email addressed to perth.registry@fedcourt.gov.au shall continue in effect despite the dismissal of the proceedings.

52    I will reserve liberty to Mr Ogbonna to apply to discharge those additional orders. If he wishes to exercise that liberty, he should do so by indicating by email to the above address that he seeks to discharge the orders and the grounds upon which he wishes to do so. He must also provide an affidavit as to any factual matters that he relies upon. I will reserve liberty to the respondents to discharge the order requiring any communication with the Court to be by email to the specified address. Unless otherwise ordered, any such applications will be considered on the papers.

Associate:

Dated:    9 August 2023