OGBONNA -v- QANTAS AIRWAYS LIMITED [2023] WASCA 168 (27 November 2023)

1. After setting out the history of the primary proceedings and other proceedings involving the appellant, the judge identified the following circumstances as, in combination, justifying an order for security for costs:[3]
   1. There had been no material delay by the respondents, who had put the appellant on notice that an application for security might be made after the defence was filed, in bringing the application that might operate as a discretionary bar to making an order for security.
   2. Matters including the appellant's bankruptcy showed that there was no realistic prospect that the appellant would be able to satisfy any adverse costs orders made at the conclusion of the primary proceedings.
   3. There was no evidence to support the conclusion that the appellant's impecuniosity had been brought about by the respondents' conduct.
   4. The appellant conducted the primary proceedings in a manner that had imposed on the respondents costs over and above those which a defendant would be expected to incur in the ordinary course of litigation, and which was calculated to increase the burden of costs on the respondents.
   5. The primary proceedings had been underway for almost 7 years and the appellant was responsible for the delay that occurred in progressing the action between 2016 and 2021. The judge was concerned as to the appellant's capacity and willingness to bring the action to trial.
   6. $50,000 was a comparatively modest amount having regard to the work that the respondents' lawyers have done since the date of the application and will be required to complete up to the conclusion of the trial.

1. The appellant advances eight grounds for appealing against the primary judge's orders.
2. Grounds 1, 2 and 8 seek to impugn the primary judge's decision to refuse an adjournment of the hearing on 23 August 2023 and determine the respondents' security for costs application on the papers. The appellant also in effect contends by ground 1 that the primary judge ought to have dealt with the appellant's application for judgment on admissions, which was also listed for 23 August 2023.
3. Grounds 3, 4 and 5 in effect challenge the decision to require security for costs where the appellant contends that he was entitled to judgment by reason of the respondents' failure to respond to a notice to admit facts. In so doing, grounds 3 and 5 are expressed in terms of raising a question rather than alleging error.
4. Grounds 6 and 7 contend that the primary judge erred in law in his summary, at [54] - [56] of the primary decision, of the submissions advanced by the appellant and respondents on the security for costs application.

1. The primary orders are interlocutory in character. Leave to appeal is required under s 60(1)(f) of the Supreme Court Act 1935 (WA).
2. We summarised the general principles governing the grant of leave to appeal from interlocutory procedural decisions in Arvind Pty Ltd v Lamers[4] and recently reiterated that summary in Low v Romaro.[5] Generally, leave should not be granted unless the decision below is plainly wrong or is attended by sufficient doubt to justify the grant of leave and a substantial injustice would be done if it remains undisturbed.

1. In our view, none of the appellant's grounds of appeal disclose any reasonably arguable basis for a successful appeal setting aside the orders requiring the appellant to provide security for the respondents' costs of the primary proceedings.

1. The decision not to further adjourn the respondents' security for costs application, thereby giving the appellant a further opportunity to make oral submissions in opposition to that application, was a discretionary decision. This court will not interfere with the exercise of that discretion unless material express error of principle is established or this court is satisfied that the primary judge's decision was unreasonable or plainly unjust, so that error can be inferred from the outcome.[6]
2. In exercising that discretion, the judge properly had regard to the case flow management principles in O 1 r 4B of the Rules. Also relevant was O 1 r 4A, which provides:

The practice, procedure and interlocutory processes of the Court shall have as their goal the elimination of any lapse of time from the date of initiation of proceedings to their final determination beyond that reasonably required for interlocutory activities essential to the fair and just determination of the issues bona fide in contention between the parties and the preparation of the case for trial.

1. The discretion to grant or refuse an adjournment must also be exercised consistently with the obligation of the court to determine disputes in a manner which is procedurally fair. However, it is well established that this does not require that a party be given an unlimited opportunity to present a case. What is required is that the parties are provided with a sufficient opportunity to present their cases.[7] A party who is given a sufficient opportunity to present their case, and who fails to take advantage of that opportunity without reasonable cause, cannot complain that they have been denied procedural fairness because the court has declined to provide a further opportunity to do so.
2. In considering whether determination of litigation is just, regard must be had to the interest of other parties to the litigation and other litigants in other cases. Speed and efficiency, in the sense of minimum delay and expense, are aspects of the just resolution of proceedings. Considerations of speed and efficiency cannot detract from the requirement that a party to litigation be given sufficient opportunity to present their case. However, where a party has been given a sufficient opportunity to present their case, then a decision about an adjournment to provide further opportunity must take account of the injustice to the other parties which may follow from the delay, expense and disruption which results from a listed hearing not proceeding.[8]
3. The appellant had been given, and had taken, the opportunity to file written material in opposition to the respondents' security for costs application. That material was considered by the primary judge in resolving the application. The appellant had also been given, and failed to take, multiple previous opportunities to make oral submissions in opposition to the security for costs application. He had failed to provide any adequate explanation for his failure to attend several previous hearings, in which he had made vague statements about feeling unwell which were unsupported by medical evidence. The appellant's past failure to properly engage with the court's process provides the background against which the refusal of a further adjournment on 23 August 2023 is to be assessed.
4. The day prior to the hearing on 23 August 2023, the appellant sought a further adjournment. Although this application was supported by an affidavit annexing a medical certificate, the medical certificate merely referred to the appellant being 'unfit to speak publicly due to lower lip infection'. A conclusionary statement about an infected lip was an inadequate evidentiary foundation for seeking an adjournment against the background of prior adjournments. It is not obvious why a lower lip infection would prevent the appellant from speaking in a normal conversational tone, which is all that is required for an oral submission. Neither the appellant's affidavit nor the medical certificate indicated that the appellant was unable to speak.
5. The appellant had been given sufficient opportunity to advance both written and oral submissions in opposition to the respondents' security for costs application. Determining that application on the papers involved no denial of procedural fairness in the circumstances of the case. The evidence before the primary judge was not sufficient to show that the appellant was unable to attend and speak to the court on 23 August 2023. The grant of a further adjournment would have involved significant additional delay to the resolution of the respondents' security for costs application, which had already been on foot for over 12 months, in a way that was inconsistent with the case flow management principles.
6. In our view, there is no arguable material express error of principle in the primary judge's decision to refuse an adjournment. Nor is the decision arguably unreasonable or plainly unjust. Grounds 1, 2 and 8 provide no reasonably arguable basis for impugning the primary judge's exercise of discretion to refuse an adjournment and determine the respondents' security for costs application on the papers, or the decision to require the appellant to provide security for costs.

1. The appellant's grounds relating to the notice to admit fall to be considered against the following procedural background.
2. On 2 November 2022, the appellant filed and served a notice to admit facts which was purportedly made pursuant to O 30 r 1 and r 2 of the Rules. On 1 December 2022, the appellant applied, purportedly pursuant to O 30 r 3 of the Rules, for judgment against the respondents in respect of their 'deemed admissions' (only so deemed by the appellant) regarding the notice to admit facts filed on 2 November 2022. On 2 December 2022, the respondents filed a response which admitted some, but not all, of the paragraphs of the notice to admit. On 23 January 2023, the appellant filed an amended application and an amended notice to admit. The respondents filed their response to the amended notice to admit on 30 January 2023, which again admitted some but not all of the matters set out in the notice.
3. The appellant's contention was, in substance, that by reason of a late or inadequate response to the notice to admit, the respondents were deemed to have admitted all of the matters set out in the notice and the appellant was entitled to judgment on those alleged deemed admissions.
4. On 31 January 2023, the primary judge dismissed the appellant's application based on the notice to admit. On 6 February 2023, the primary judge published reasons for making that order. The primary judge's reasons were expressed in the following terms:[9]

The [appellant's] application was fundamentally misconceived. First, as the [respondents] contended and is plain from the text of the order there is no time limit specified in O 30 for a response to a notice to admit facts. Order 66 r 3(2) does not impose such a time limit. It does no more than provide that a party who does not admit facts within seven days of a notice to admit those facts being served will be liable for the costs of proving those facts unless the court otherwise orders. Secondly, and in any event, the [respondents] responded to the [appellant's] notice to admit facts served on 23 January 2023 on 30 January 2023. The [appellant's] contention that the [respondents'] response of 30 January 2023 was rendered 'fraudulent' and invalid by reason of par 42 patently has no merit and requires no further comment. The [appellant's] application was not supported by any legal principle.

1. On 7 February 2023, the appellant made a further application seeking judgment on the basis of admissions by reference to a further notice to admit facts filed on 3 February 2023. That application had not been determined at the time the security for costs order was made, although it had been listed for hearing on 23 August 2023. The primary judge noted that application at [15] of the primary decision.
2. Grounds 3, 4 and 5 and the supporting submissions are difficult to follow. They appear to contend, in substance, that the primary judge should have refused to order security for costs because the appellant was entitled to judgment on admissions by reason of the respondents' failure to adequately respond to the notice to admit filed on 3 February 2023. There is no reasonable basis for that contention. As the primary judge correctly recognised, the failure to respond to a notice to admit satisfactorily or within a particular time does not give rise to deemed admission of facts specified in the notice. The judge had ruled against the appellant on this point, and the further application for judgment on admissions filed on 7 February 2023 in the face of the earlier ruling was, prima facie, an abuse of the court's process. The primary judge was not required to deal with the application for judgment on admissions before determining the respondents' security for costs application. The application for judgment on admissions provided no proper basis for the primary judge to refuse to order the appellant to pay security for the respondents' costs of the primary proceedings.
3. None of grounds 3, 4 and 5 have a reasonable prospect of succeeding. Each is doomed to fail. They cannot justify leave to appeal.

Grounds 6 and 7: judge's summary of submissions in primary proceedings

1. Grounds 6 and 7 contend that the primary judge erred in law in making statements set out at [54] - [56] of the primary decision. In those paragraphs, the judge is summarising the submissions advanced by the parties on the security for costs application. The grounds do not specify why these passages are said to involve an error of law. The submissions in support of ground 6, which challenges the judge's summary of the appellant's submissions, contain an unsupported assertion that the respondents' application for security for costs relied on unspecified 'False Commonwealth documents' that contained false and misleading information. The appellant's submissions in support of ground 7 assert that the judge erred in saying that the respondents did not solely rely on the appellant's bankruptcy.
2. We see no arguable basis for contending that the primary judge's summary of the parties' arguments involved any error of law capable of affecting the disposition of the respondents' security for costs application. Neither ground 6 nor ground 7 have a reasonable prospect of succeeding. They do not justify leave to appeal.

1. The appellant's grounds of appeal and supporting submissions do not engage with the primary judge's reasons for ordering the appellant to pay security for the respondents' costs of the primary proceedings. In our view the primary judge's decision was correct for the reasons which his Honour gave, which we have broadly outlined at [7] above. The correctness of the primary judge's decision to require the appellant to pay security for costs is not attended by sufficient doubt to justify the grant of leave to appeal.
2. On 22 November 2023, the appellant filed an application in the appeal, seeking various orders. It was supported by an affidavit of the appellant sworn on the same day, in which he set out in detail his argument on the grounds of appeal. The principal contention appears to be that he is entitled to judgment on admissions in relation to five claims of defamation in the amount of $3 million ($600,000 for each claim) excluding interest. That contention must be rejected for the reasons explained at [28] above. It was otherwise unnecessary to deal with the application filed on 22 November 2023 given the orders made in relation to the application for leave to appeal.

1. For the above reasons, at the conclusion of the hearing of the application for leave to appeal, we made the following orders:
   1. Leave to appeal is refused.
   2. The appeal is dismissed.
   3. The appellant must pay the respondents' costs of the appeal fixed in the sum of $1,000.
2. The order for costs followed the event. The amount of $1,000 appeared to us to be reasonable in the circumstances.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Ogbonna v Qantas Airways Ltd [No 5] [2023] WASC 334 (primary decision) [9] - [28].

[4] Arvind Pty Ltd v Lamers [2020] WASCA 47 [15] ‑ [17].

[5] Low v Romaro [2023] WASCA 155 [28] - [30].

[6] House v The King (1936) 55 CLR 499, 504 ‑ 505.

[7] Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 [98], [102], [112].

[9] Ogbonna v Qantas Airways Ltd [No 4] [2023] WASC 21.