Ogbonna v Government of Western Australia

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

COLVIN J: 1 Mr Ogbonna claims damages for alleged defamation. He brings his claim against the Government of Western Australia (which he describes in his statement of claim as a State of the Commonwealth which is able to be sued) and Programmed Integrated Workforce Ltd (Programmed). 2 The alleged defamatory publications are (a) the publication of the contents of a violence restraining order running sheet in a manner that was accessible as part of the National Domestic Violence Order Scheme (Scheme); and (b) the publication of an oral statement to Mr Ogbonna's then spouse by police officers concerning a call that had been received about the alleged mental state of Mr Ogbonna at that time. The precise manner in which Programmed is alleged to have been responsible for the publication is somewhat obscure. There is an allegation in the statement of claim that the second publication was the natural and probable consequence of an unnamed 'employee, agent, officer and/or manager' of Programmed saying words which are not identified. There is a cross reference to an earlier paragraph but it appears to be in error. 3 At the time of commencement of the defamation proceedings, the Western Australian Police Force was also named as a respondent. However, on the application of Mr Ogbonna, leave was given to amend the application to remove that party as a respondent on the basis that it was not a juridical entity. 4 Both of the respondents have applied for orders summarily dismissing the proceedings on various grounds. Those applications are yet to be heard and determined. 5 Mr Ogbonna now seeks leave to issue a subpoena. The application for leave is not in proper form and specifies no grounds. The proposed subpoena is to be directed to the Manager (Freedom of Information) at Western Australian Police Force. It seeks the following documents: 1. Incident Number: LWP17110700802684, issued on 7 November 2017 (Caller Details required: (1). Full legal name (2). Phone details (3). Residential address (4). IR number). Job order: (CAD No 802684). 2. Documents on the database with respect to File No: MC/CIV/PER/RO/3672/2020 that is accessible on the National Domestic Violence Order Scheme which was uploaded on 31 August 2020 at Cockburn Police Station. 3. Name of Police Officer who published the violence restraining order Running Sheet on 31 August 2020 at Cockburn Police Station. 4. Name of the Police Officer who revoked the Restraining Violence Order number MC/CIV/PER/RO/3672/2020 beginning from 23 April 2022 without a revocation date in place. 5. Email from the Magistrates Court of Western Australia to the Cockburn Police Station requesting the revocation of restraining order File No: MC/CIV/PER/RO/3672/2020. 6. Name of the South Australian Police Officer who access at midnight either on 7 or 8 April 2021, in Port Augusta, South Australia…including my details and those of another person (a Western Australian Resident) using our drivers licence to access the Western Australian Police Force database and the National Domestic Violence Order Scheme because he did inform me about my restraining order. 6 A subpoena may only be issued with leave: r 24.01 of the Federal Court Rules 2011 (Cth). An applicant for leave to issue bears the onus of demonstrating that the subpoena has a legitimate forensic purpose. This requires the documents sought to be shown to have apparent relevance or, put another way, that they are reasonably likely to add to the evidence that is relevant: Wong v Sklavos [2014] FCAFC 120 at [12]. 7 Case management principles may also be brought to bear in determining whether leave should be given. This is a consequence of the overarching purpose enacted by s 37M of the Federal Court of Australia Act 1976 (Cth). At the time that leave is sought, the Court may be satisfied, for example, that the resolution of the dispute at a cost that is proportionate to the importance and complexity of the dispute is a reason why the requirement for leave should be applied to refuse leave to issue the proposed subpoena. In the present case, with the applications for summary dismissal pending, it is the relevance to the determination of those applications that is of significance. 8 As has been explained, the publications complained of by Mr Ogbonna are confined to the publication of the running sheet as part of the Scheme and the oral statement made by police officers to Mr Ogbonna's then wife. It appears to be alleged that the oral statement was the natural or probable consequence of a statement made by some person for whose actions Programmed may be responsible. 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. 10 As to category (1), it appears to be directed only to obtaining information concerning the identity of the person who made the alleged complaint to the Police. For reasons that have been given, the identity of the relevant employee is not relevant to the determination of the application for summary dismissal and therefore I am not satisfied that leave should be given to issue a subpoena in the terms sought at this stage of the proceeding. If the question of identity becomes significant for the summary dismissal application then that is an issue that can be addressed at that time. As matters stand, that point has not been reached. Therefore, I express no view as to other matters bearing upon the appropriateness of the category. 11 As to category (2), Mr Ogbonna has produced the document that he says was published on the Scheme. There is no apparent relevance of any other documents that may have been uploaded to the Scheme on the date identified. 12 As to category (3), given the stage of the proceedings and the nature of the claims made there is no apparent relevance to the identity of the police officer who prepared the running sheet for the purpose of dealing with the pending interlocutory applications for summary dismissal. 13 As to categories (4), (5) and (6) there is no part of the claim that appears to concern these matters and apparent relevance has not been demonstrated. 14 For those reasons, the application for leave to issue the subpoena is refused. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Colvin.