Ogbonna v Link Workforce Pty Ltd

Introduction 1 The applicant, Mr Ogbonna, seeks leave to appeal from a decision of Feutrill J made on 12 June 2023. Before his Honour, Mr Ogbonna sought orders for judgment on certain claims in his action against the respondent, Link Workforce Pty Ltd (Link Workforce), consequent upon its alleged failure to dispute facts and documents which had been specified in a "Notice to Admit" served under r 22.01 of the Federal Court Rules 2011 (Cth) (the Rules). 2 The application before Feutrill J was unsuccessful, with his Honour finding that the matters in the Notice to Admit had been disputed by Link Workforce in accordance with the Rules. In the alternative, his Honour held that he would have dispensed with the obligation to respond to Mr Ogbonna's Notice to Admit on the basis that Link Workforce had previously disputed the relevant facts. 3 It is necessary to remark that Mr Ogbonna was particularly querulous in his interactions with the Court and, whilst he was regularly asked to address the issues relevant to the application, he repeatedly meandered into irrelevant and scandalous topics. He was not averse to alleging fraud or corruption by anyone whom he perceived acted contrary to his interests. In the course of his oral "submissions", he made numerous baseless allegations directed at the Court or Registry staff about the manner in which the proceedings were managed and he frequently, and again without foundation, claimed that his perceived detrimental treatment was due to racism or corruption. 4 For the reasons which follow, the application for leave to appeal must be refused. No doubt was raised as to the correctness of the primary judge's decision and Mr Ogbonna would not suffer detriment if required to establish the facts supporting his case in the usual manner.

Background 5 There is no need to set out the background of this matter in any detail. It is articulated at [1] - [12] of the learned primary judge's reasons: Ogbonna v Link Workforce Pty Ltd [2023] FCA 633: and need not be repeated. 6 Mr Ogbonna commenced proceedings against Link Workforce for relief under the Fair Work Act 2009 (Cth) (Fair Work Act) and for damages for defamation. 7 He was subsequently the subject of a sequestration order and his resulting bankruptcy raised questions about his standing to further progress the proceedings. The learned primary judge quite wisely deferred consideration of that issue on the basis that, if the application before him was not successful, it would not be necessary to determine it. His Honour thereupon considered the question of whether, in the circumstances, any admissions were deemed to have been made by Link Workforce pursuant to r 22 of the Rules.

Facts relating to the delivery of the Notices to Admit 8 On 12 October 2022, Mr Ogbonna served a document entitled, "Notice to Admit" on Link Workforce by sending a copy of it by email to its solicitors. The document was signed and dated 12 October 2022, and will otherwise be referred to in these reasons as the "Unsealed Notice". 9 On that same day, the document was lodged in the Court, though it was not accepted for filing until 18 October 2022. 10 On 25 October 2022, Mr Ogbonna served a copy of the sealed Notice to Admit (or the "Sealed Notice") on Link Workforce's solicitors by email. 11 For the avoidance of doubt, the contents of the Unsealed Notice and the Sealed Notice are identical - each contains a notice to admit the same facts. 12 On 26 October 2022, the solicitors for Link Workforce served a document entitled, "Notice of Dispute", on Mr Ogbonna by sending a copy of it to him by email. That document disputed the facts and documents in each of Mr Ogbonna's identical Notices. It stated: The Respondent objects to the Form 41 Notice to Admit filed by the Applicant on 18 October 2022 and served on the Respondent on 25 October 2022 (Notice) on the following grounds: 1. The Notice is premature in circumstances where: (a) the Respondent has not yet filed its defence in the proceedings; and (b) Paragraph [2] of the orders made on 29 August 2022 which required the Respondent to file a defence was vacated by orders made by his Honour Justice Feutrill on 26 October 2022. 2. The Notice contains a mixture of asserted facts, conclusions and propositions of law. 3. The Notice contains references to documents which are incomplete and uncertain. Under cover of that objection, and noting that the asserted facts and asserted authenticity of documents the subject of the Notice are properly the subject of the pleadings in the first instance, the Respondent says as follows. Disputed facts The Respondent disputes the truth of the facts specified in paragraphs 1 to 15 of the Notice (inclusive). Disputed documents The Respondent disputes the authenticity of the following documents which were specified in the Notice: 1. Employee Information Handbook V5 2021 2. Linkforce Hub App Installation Guide 3. Casual Employment with Link Workforce Pty Ltd as trustee for the Link Workforce Trust dated 24/04/2021 (Emphasis in original). 13 There is no doubt that the facts "specified in paragraphs 1 to 15 of the Notice" referred to in the Notice of Dispute, are those facts which were referred to in both the Unsealed Notice and the Sealed Notice. Similarly, the documents which are disputed are those which were set out in each of the Notices. 14 On 18 November 2022, Mr Ogbonna filed an interlocutory application in which he sought orders for judgment in his favour, pursuant to r 22.07 of the Rules. That application was set down for hearing by the learned primary judge and the parties filed and served submissions in relation to it. 15 Mr Ogbonna asserted that the Notice of Dispute delivered by Link Workforce incorrectly referred to the Notice to Admit as that filed on 18 October 2022 and served on 25 October 2022 (being the Sealed Notice), whereas the "correct" notice was filed and served on 12 October 2022 (being the Unsealed Notice). Thus, he said that Link Workforce failed to properly respond to his Notice to Admit in accordance with r 22.02 of the Rules. That is, despite Link Workforce having denied the facts and documents within 14 days of receipt of the Unsealed Notice, he claimed that they were deemed to have been admitted. It was on the basis of the alleged admissions that he sought judgment on his claims.

Determination by the primary judge 16 The learned primary judge set out the relevant parts of r 22 of the Rules (at [19]) as follows (with the notes omitted): 22.01 Notice to admit facts or documents A party (the first party) may serve on another party (the second party) a notice, in accordance with Form 41 (the notice to admit), requiring the second party, for the purpose of the proceeding only, to admit the truth of any fact and the authenticity of any document specified in the notice to admit. 22.02 Notice disputing facts or documents The second party may, within 14 days after service of the notice to admit, serve on the first party a notice of dispute, in accordance with Form 42, disputing the truth of any fact or the authenticity of any document specified in the notice to admit. … 22.04 Facts or documents taken to be admitted if not disputed If the second party does not serve a notice of dispute in accordance with rule 22.02, the second party will be taken to have admitted the truth of each fact or the authenticity of each document specified in the notice to admit. … 22.06 Withdrawal of admissions A party may apply for the leave of the Court to withdraw an admission made under this Part. 22.07 Judgment on admissions If a party makes an admission, another party may apply to the Court for any judgment or order to which the party is entitled on the admission. 17 After identifying the scope and nature of r 22, his Honour observed (at [21]) that the Court may dispense with compliance or vary the operation of r 22 by use of the plenary powers in r 1 and, in particular, rr 1.34, 1.39 and 1.32 of the Rules. 18 Turning to the consideration of the application for judgment, his Honour described (at [22]) Mr Ogbonna's interpretation of the Notice of Dispute and r 22 of the Rules as being unduly technical and formalistic, which was not consistent with the overarching purpose of the civil practice and procedure provisions referred to in s 37M of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act). His Honour also noted (at [23]) that the contents of the two Notices were identical in that each required Link Workforce to admit the same facts and acknowledge the authenticity of the same documents. He then observed, in the same paragraph, that whilst the Notice of Dispute referred only to the Notice to Admit served on 25 October 2022 (being the Sealed Notice), in substance, it disputed the facts and authenticity of the documents specified in both Notices. 19 It was on this basis that his Honour held that Link Workforce had disputed the truth of the facts and the authenticity of the documents specified in the Notices to Admit and, in this respect, it is worth extracting his Honour's observations at [23]: The contents of the notice to admit served on 12 October 2022 and the contents of the sealed notice to admit served on 25 October 2022 are identical. Each contains a notice to admit the same facts. While the notice of dispute only refers explicitly to the sealed notice to admit served on 25 October 2022, the notice in its terms disputes the facts and authenticity of the documents specified in both the notice to admit served on 12 October 2022 and the notice to admit served on 25 October 2022. That is, the respondent disputed the truth of the facts and the authenticity of the documents specified in the notice to admit (whether served on 12 October 2021 or 25 October 2022). In my view, the notice of dispute was in accordance with r 22.02 and it was served on the applicant within 14 days. Therefore, there has not been any deemed admission of any fact or the authenticity of any document specified in the notice to admit served on 12 October 2022 by operation of r 22.04 of the Rules. 20 It is clear that his Honour determined the application on the basis that, for the purposes of r 22.02, a timely notice disputing the facts and documents had been served on Mr Ogbonna, with the consequence being that no facts or documents were taken to have been admitted. 21 His Honour then provided an alternative justification for his decision. He observed (at [24]) that it was clear that Link Workforce had obviously intended to dispute the facts and authenticity of the documents specified in the Unsealed Notice which was served on 12 October 2022, and had made that intention known to Mr Ogbonna within 14 days of its service. In those circumstances, his Honour held that were it to be that his initial conclusion was wrong, he would dispense with the formal requirements of r 22.02 and the operation of r 22.04 of the Rules. In other words, he would treat the Notice of Dispute as a having been given in accordance with r 22.02 and, as such, none of the facts or authenticity of documents specified in the Notice to Admit would be taken to have been admitted. 22 In the further alternative, his Honour held (at [24]) that he would grant Link Workforce leave to withdraw any deemed admission under r 22.06 of the Rules, if that were required. 23 Consequently, Mr Ogbonna's application was dismissed.

Application for leave to appeal 24 There is no doubt that Mr Ogbonna requires leave to appeal under s 24(1A) of the Federal Court Act. The judgment of Feutrill J was interlocutory and there is no serious question to the contrary. Although Mr Ogbonna contended before this Court that the decision of the primary judge was final, it is difficult to understand the arguments he advanced in that respect. 25 In his written submissions, he sought to raise issues, amongst other things, relating to whether his defamation proceedings were stayed by his bankruptcy. However, as has been indicated, the learned primary judge held that he did not have to consider that issue. In any event, whether the proceedings are stayed by operation of s 60(2) of the Bankruptcy Act 1966 (Cth) is entirely irrelevant to whether the primary judge's decision on Mr Ogbonna's application for judgment based on admissions can be characterised as a final judgment. Mr Ogbonna's application to the primary judge was clearly interlocutory because it did not seek to determine the substantive rights of the parties. Rather, it merely sought to determine their rights as matters of practice and procedure and the determination to refuse that application was also interlocutory.

Sufficient doubt 26 In determining whether leave to appeal ought to be granted, there are principally two relevant factors. The first is whether the judgment of the Court below is attended by sufficient doubt to warrant it being reconsidered by a Full Court. The second is whether substantial injustice would result if leave were refused, supposing the decision to be wrong: see Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397, 398. 27 On the hearing of the application, Mr Ogbonna again claimed that, in some way, the facts and documents referred to in the Notices to Admit were not disputed. That cannot be correct. By the Notice of Dispute issued by Link Workforce, the facts and documents were clearly disputed. Even though the document may have referred only to the Sealed Notice, as a matter of substance, the facts and documents which Link Workforce was asked to admit were contested. 28 A significant purpose of r 22 is to afford a party the opportunity to put the other on notice that if they dispute the specified facts or documents and the truth of the facts or the authenticity of the documents is later proved, they will be at risk of paying the costs of establishing them, regardless of the outcome of the hearing: r 22.03. The party seeking admissions is entitled to advance the facts or documents in respect of which an admission is sought and, by a relevant notice, the opposite party is entitled to dispute them. If, through this process, the admission of sufficient facts occurs, the party obtaining the admissions may seek to obtain judgment on them: r 22.07. Whilst the thrust of r 22 is to require one party to admit facts where appropriate, there is no doubt that where a party receiving a notice to admit denies the facts or authenticity of documents, it is for the party seeking the admissions to prove the facts or documents in the ordinary way. In this respect, the concern of the rule is whether the party receiving the notice has indicated their intention not to admit the matters put. 29 Here, as the primary judge found, it was pellucid that by its Notice of Dispute, Link Workforce made it clear that it disputed the facts and the authenticity of the documents specified in each of the identical Notices to Admit. That is unquestionably apparent from the terms of the Notice of Dispute and there is no reason to doubt the correctness of the learned primary judge's conclusion in this respect. 30 It follows that there can be no doubt about this aspect of the primary judge's reasons which might provide a basis on which leave could be granted. 31 The primary judge also concluded that, had the Notice to Admit served on 12 October 2022 been somehow efficacious in giving rise to a deemed admission, he would have ameliorated the impact of r 22.02 by dispensing with formal compliance with r 22.02 and the operation of r 22.04. He would further treat the Notice of Dispute as a notice given in accordance with r 22.02 such that none of the facts or documents would be taken to be admitted. In the alternative, he would have granted Link Workforce leave to withdraw any deemed admission. As his Honour said (at [24]), it is not in the interests of justice that form be permitted to rule over substance in the circumstances of this case. Though Mr Ogbonna seemed to cavil with this approach, it is indisputably correct. Such an approach is entirely consistent with the historical jurisprudential notion that the Rules of court are intended to be the handmaiden of justice, not its master. It would be asinine were the Court to close its eyes to the fact that Link Workforce had expressly and deliberately disputed the facts and documents in respect of which Mr Ogbonna had sought admissions. 32 Although Mr Ogbonna seemed to suggest that the actions of the primary judge were other than in accordance with the Rules, that is not so. Rule 1.34 gives the Court a plenary power to dispense with compliance with any of the Rules, either before or after the occasion for compliance arises. Further, r 1.35 permits the Court to make an order that is inconsistent with the Rules and, in that event, the order of the Court will prevail. The learned primary judge's recruitment of the broad powers of the Court was a matter of practice and procedure and a discretionary exercise of power. None of the usual requirements to satisfy a court that the discretion was wrongly exercised have been addressed in this case. Indeed, I am in total agreement with the learned primary judge's appropriately pragmatic use of the Rules in this case. 33 It follows that the learned primary judge was entirely correct in his decision and that no reason has been shown as to why it should be the subject of an appeal. 34 On the hearing of the application, Mr Ogbonna raised a new ground, being that the Notice of Dispute did not set out in terms each of the facts which were disputed. 35 Form 42 of the Federal Court Forms shows that the pro forma notice of dispute includes the following statement: Disputed facts The [role of party eg Respondent] disputes the truth of the following facts specified in the [role of party eg Applicant]'s notice to admit dated [eg 19 June 20..]: 1. [state each fact] 2. 36 Mr Ogbonna submitted that because the Notice of Dispute served by Link Workforce did not dispute each of the facts per seriatim, it was invalid and did not operate to negate the effect of the Notices to Admit. However, it is apparent that the Notice of Dispute was substantially in conformity with Form 42 and the omission to set out each of the alleged facts is an irrelevant non-compliance, if it is a non-compliance at all. Whilst on some occasions it might be appropriate to set out the facts which are not admitted, that is not a necessity for the efficacy of a notice of dispute under r 22.02. That is especially so where all of the facts and documents are contested. 37 Mr Ogbonna further submitted that Link Workforce was required to set out the reasons for the dispute of fact on oath and in an affidavit. There is no requirement in r 22.02 that a party who receives a notice to admit must provide an affidavit deposing to their belief about the facts which they are disputing.

Substantial injustice 38 Further, no substantive disadvantage can be suffered by Mr Ogbonna by the refusal of leave. If, at the trial of his action, he proves the facts or documents the subject of his Notice to Admit, there may be costs consequences for Link Workforce. He is entitled, in the usual way, to establish the truth of the facts alleged and the authenticity of the documents. He will have the ordinary opportunity to adduce evidence and prove the facts upon which his case is founded. It follows that it cannot be said that substantial injustice would result in this case if leave were refused, supposing the decision below to be wrong.

Conclusion 39 In these circumstances, the application for leave to appeal must be refused. 40 Link Workforce filed a submitting notice in respect of the application for leave. That notice also indicated that it did not wish to be heard on the question of costs. 41 That being the case, and in circumstances where these proceedings perhaps arise under the Fair Work Act, the appropriate order is that there be no order as to costs. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Derrington.