Ogbonna v Government of Western Australia

1. Leave to issue the proposed subpoena to the Commissioner of Police is refused. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

COLVIN J: 1 Mr Ogbonna again seeks to apply for leave to issue a subpoena. By the terms of orders made on 19 May 2022, leave is required to bring any application in these proceedings: Ogbonna v Government of Western Australia (No 2) [2022] FCA 584. For the following reasons, leave should be refused. 2 By an application lodged on 30 August 2021, Mr Ogbonna seeks damages for defamation. The respondents to that application are named as 'Government of Western Australia and 'Programmed Integrated Workforce', being the first and third respondents. The application as originally framed named 'Western Australian Police Force' as the second respondent but Mr Ogbonna accepted that there was no such juridical entity and leave was given to remove the second respondent. 3 The proceedings continue on the basis of an amended statement of claim dated 26 April 2022 against the first and third respondents. 4 The amended statement of claim identifies two matters the subject of complaint. The first concerns an alleged publication on 31 August 2020 by an unnamed Western Australian police officer of a document described as a 'running sheet'. It is claimed that the running sheet 'is automatically accessible across Australia'. A copy of the running sheet is appended to the pleading. One of the mattes stated on the running sheet in respect of Mr Ogbonna is 'has medical condition'. By way of particulars to the plea concerning the publication of the running sheet it is said that the statement 'has medical condition' was defamatory (Statement as to Medical Condition). 5 The particulars also allege that the running sheet was uploaded onto a police database and that by the uploading there was publication by the police officer to anyone to whom the information on the database was conveyed. It is said that the 'defamatory material' on the running sheet was conveyed to an identified person who accompanied Mr Ogbonna on an unspecified date when he received a restraining order and also when it was conveyed to a police officer in South Australia at Port Augusta when a car in which he was a passenger was stopped on 7 or 8 April 2021. 6 The pleading alleges that certain defamatory imputations were carried by the words 'has medical condition' and claims that damage was caused to Mr Ogbonna. 7 It is alleged that the first respondent is vicariously liable for the conduct of the police officer. 8 The second matter of complaint concerns a statement said to have been made at a much earlier time by two police officers. The statement is alleged to have been made by the officers to Mr Ogbonna's then spouse on 7 November 2017. The words allegedly spoken concern the reasons that the officers were dispatched to the address where they attended (Statement as to Reasons for Attending). 9 By way of particulars to the plea concerning the Statement as to Reasons for Attending it is said that 'an unnamed employee, agent, officer and/or manager of [the third respondent] or a related entity out of spite made a defamatory statement about Mr Ogbonna to [Western Australian Police Force]'. This is a reference to a different and earlier statement. I will refer to the alleged statement by the unnamed person on behalf of the third respondent or a related entity as the 2017 Report. 10 The particulars as to the second matter of complaint then go on to make the following allegations: (1) the 2017 Report caused the two police officers to be dispatched to the address where they spoke the Statement as to Reasons for Attending (particular (c)); (2) the first matter of complaint (that is the Statement as to Medical Condition) was the result of the repetition of the 2017 Report (particular (d)); and (3) the third respondent is responsible for the republication of the Medical Condition Statement (particular (e)). 11 Whether the formulation of a plea in that manner is sufficient to demonstrate a proper basis for a claim is the subject of interlocutory applications brought by each of the first and third respondents which are yet to be determined. The pleading goes on to say that further particulars will be provided following 'discovery, subpoena and interrogatories (such as the name of the publisher of the defamatory statement that was made on 7 November 2017)'. 12 The pleading alleges that certain defamatory imputations were carried by the Statement as to Reasons for Attending and that damages were caused. 13 It is then alleged that the natural and probable consequence of the third respondent's employee, agent, officer and/or manager 'saying the words set out below in paragraph 5(d)' means the Respondents are liable for the publication of the defamatory statements. Noting that the paragraph referred to appears to be an error, it appears that it may be claimed that the Medical Condition Statement was a consequence of the 2017 Report. 14 Each of the first and third respondents has brought an application for the summary dismissal of the proceedings, alternatively for orders striking out the pleading. Mr Ogbonna has applied for those applications themselves to be summarily dismissed and for an order that I recuse myself from the further conduct of the proceedings. Those applications were listed for hearing on 30 August 2022 at 9.45 am. Mr Ogbonna informed the Court on the morning that he would not be able to attend until 10.00 am. At approximately 10.15 am he was still not in attendance and orders were made adjourning the applications for hearing on a date and at a time to be fixed. 15 The application for leave pursuant to the orders of 19 May 2022 to be able to seek leave to issue a subpoena falls for determination in the above context. As I observed in Ogbonna v Government of Western Australia [2022] FCA 443 at [9]: The submissions advanced for Programmed in support of its application for summary dismissal do not depend upon a claim that it has not been shown that there was a complaint to the police. Programmed has filed affidavit evidence in support of its application for summary dismissal recounting that a senior member of Programmed Skilled Workforce Limited made a report to the Police about the conduct of Mr Ogbonna on the relevant date. It relies upon that evidence to support its application for summary dismissal. Unless and until there was a prospect that the application for summary dismissal would be upheld on the basis that the person who made the report was an employee of an entity other than Programmed, nothing turns on the identity of the person who made the complaint. For so long as the precise circumstances of the employment of the employee and the responsibilities of the employee are contentious that appears to be unlikely. 16 Therefore, the summary dismissal application by the third respondent does not depend upon a claim there was no report to Police of the kind alleged to have been made in 2017. Rather, speaking generally, it alleges that there are difficulties with connecting the events that occurred in 2017 with the first matter complained of and any claim based upon what occurred in 2017 is out of time. There is also a jurisdictional point made in respect of the second matter on the basis that it involved the making of an oral statement within Western Australia. 17 As to the first respondent, the application for summary dismissal relies upon evidence of the circumstances concerning the publication of the running sheet and claims that time limits mean the application against the first respondent is out of time. 18 In the above context, the proposed application is for leave to issue a subpoena requiring the following documents and things to be produced: The documents and things you must produce are as follows: 1. Incident Number: LWP17110700802684, issued on 7 November 2017 (Caller Details required: (1). Full legal name (2). Phone number (3). Documents with respect to IR number. Job order: (CAD No 802684). 2. Documents relating to the Family Violence Restraining Order (FVRO) No.: MC/CIV/PER/RO/3672/2020 dated 31 August 2020 on Western Australian Police Force Incident Management System (IMS) at Cockburn Police Station. 3. Information regarding (FVRO) No: MC/CIV/PER/RO/3672/2020 in relation to the National Domestic Violence Order Scheme (NDVOS) and National Police Reference System (NPRS) and when it was accessed. 4. Name of the South Australian Police Officer who access NPRS at midnight either on 7 or 8 April 2021, in Port Augusta, South Australia … using Western Australian issued drivers' licences to access information in relation to the NDVOS on the IMS via NPRS. 5. Name of Police Officer who published the defamatory statement 'has medical condition' on the FVRO Running Sheet and IMS on 31 August 2020 at Cockburn Police Station. 6. Name of the Police Officer who revoked the FVRO No.: MC/CIV/PER/RO/3672/2020 on the IMS and the date of revocation given it was still active as at 23 April 2022 on the IMS. 7. Email from the Magistrates Court of Western Australia to the Cockburn Police Station requesting the revocation FVRO No.: MC/CIV/PER/RO/3672/2020. 19 The affidavit in support of the application says: Application for leave to issue subpoena for preliminary discovery 3. This affidavit is in support of my application for preliminary discovery, pursuant to rules 7.22 and 24.13(1)(b) of the Federal Court Rules 2011 (Cth) for documents that would help me ascertain the prospective respondent's description which are for legitimate forensic purposes. 4. I applied for leave to issue a subpoena on 26 April 2022 and 18 May 2022 respectively to enable the discovery of the name of the Police Officer, who published the defamatory words: 'Warnings: Not to issue firearm, Has medical condition' on a Western Australia Police Force running sheet and Incident Management System on 31 August 2020, annexed hereto, and marked 'CIC0-28' are subpoena applications and refusal decision. 5. I sought also the name of the employee of Programmed Integrated Workforce Ltd of or a related entity who called the Western Australia Police Force and falsely alleged that I was suicidal and caused the officers … to attended my previous residence … on 7 November 2017. Other applicants with similar applications have been approved to enable them to progress their defamation cases, annexed hereto, and marked 'CIC0-29' are such approval decisions and orders for subpoena. 6. Article 26 of the United Nations International Covenant on Civil and Political Rights provide: 'All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.' 7. Racial discrimination is unlawful pursuant section 9(1) of the Racial Discrimination Act 1975 (Cth) provides: 'It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life. (footnote omitted) 20 Thereafter, the affidavit refers to matters concerned with an application that I disqualify myself from hearing the applications in the proceedings. I deal with those matters separately below. 21 The submissions advanced in support of the application for leave to seek the issue of the proposed subpoena say that a subpoena is sought rather than preliminary discovery and that a subpoena would have a legitimate forensic purpose. However, the submissions do not explain why the documents that are sought are required at this stage of the proceedings. In particular, they do not identify by reference to the submissions advanced on the applications brought by each of the first and third respondents why the documents that are sought are necessary to answer those submissions. Given that the applications by the respondents have been on foot for some time and have yet to be determined and the application for leave was brought just before the hearing of those applications, it is necessary for Mr Ogbonna to demonstrate precisely why the documents are needed at this stage (that is, to answer those applications). He has not done so. 22 Further, there is nothing to indicate why the names and information sought in categories 1, 4, 5 and 6 will assist Mr Ogbonna to answer the complaints raised by the respondents. Nor is it apparent how the documents in categories 2, 3 and 7 are relevant to the claims as pleaded in the amended statement of claim. 23 As to the matters stated in the affidavit that are said to support an application for orders that I disqualify myself from the further conduct of these proceedings for bias, an application by Mr Ogbonna for orders to that effect was also listed for hearing on 30 August 2022. As I have explained, it was not heard at that time due to the failure by Mr Ogbonna to attend. For present purposes, a question arises as to whether I should recuse myself from dealing with the present application in the meantime. As far as I can discern from the terms of the materials that have been filed, Mr Ogbonna alleges that I should disqualify myself for actual bias and discrimination. He points to a number of decisions that I have made that are adverse to his interest. However, beyond the fact that those decisions were unfavourable to him, I can discern no specific matter that is advanced to support his claim of actual bias. Therefore, to the extent that he claims that I should disqualify myself from dealing with his application for leave to seek the issue of a subpoena, I decline to do so. Against the possibility that there is some particular matter that he relies upon to support the recusal application that I have misunderstood, he will be able to raise that matter when his application for which leave has been given is heard. 24 It appears that Mr Ogbonna also seeks to file a document styled as 'Reamended Statement of claim'. Documents with that description were lodged shortly prior to the hearing listed for 30 August 2021. However, Mr Ogbonna needs leave to amend and there is no application for leave. Further, in accordance with the orders made on 19 May 2022, Mr Ogbonna would first need to seek leave to bring such an application. For those reasons, I have today directed that the Reamended Statement of claim not be accepted for filing. 25 It appears that Mr Ogbonna may wish to propose the terms of the Reamended Statement of claim on the basis that they will, if allowed to stand, answer the complaints raised by the respondents on their applications. If so, the proper course is for Mr Ogbonna to file the document as a minute of proposed re-amended statement of claim. Its terms can then be considered when the respondents' applications are heard and determined. No leave is needed for such a document to be filed. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Colvin.