OGBONNA -v- QANTAS AIRWAYS LTD [No 2] [2020] WASC 359 (13 November 2020)

The plaintiff further claims that QGS is vicariously liable for:

1. Battery and assault by Mr Nokes.
2. Defamation in letter of 21 September 2015 written by Mr Yeo.
3. Defamation in letter of 2 December 2015 written by Mr Meehan.
4. Defamation spoken on 15 September 2015 by Mr Shannon.
5. Defamation on 10 September and 13 September 2015 spoken by unidentified QGS employees.
6. General claims.

Approach to pleading by self‑represented litigants

1. The court should ensure that a plaintiff is not improperly deprived of the opportunity of having his case tried. In the case of self‑represented litigants, the court should ensure that in a poorly expressed or unstructured statement of claim there is not a viable cause of action which, with appropriate amendment or permissible assistance from the court, could be put into proper form.[1]
2. The court should afford the pleading of a self‑represented litigant a liberal and lenient construction. The court cannot extend a liberal construction of pleadings to the redrafting of pleadings entirely or suggesting a case that would have a better chance of success if it were cast as one cause of action rather than another. The court cannot and must not trample upon the rights of an opponent who is legally represented.

Claim for unpaid wages and superannuation ‑ breach of employment contract

1. This cause of action is pleaded at [4] ‑ [15] of the PSOC. The defendants do not submit that the PSOC does not disclose a reasonable cause of action. In their written submissions the defendants submit that the pleading is embarrassing because it pleads matters that are irrelevant, unclear or insufficiently particularised and two matters are said to be scandalous. In oral submissions counsel for the defendants, Mr Willinge, submitted that the pleading may stand if it is amended so as to remove the matters which make it embarrassing. Amendments to [11], [12], [14] and [15] are required to make the pleading not embarrassing. The draft statement of claim annexed to these reasons sets out the form of pleading of this cause of action which I will permit.

1. The plaintiff's pleading contains allegations which are not relevant. In my opinion, the description of requirements of the Aviation Transport Security Act 2004 (Cth), and the Aviation Transport Security Regulations 2005 (Cth), is not relevant to the plaintiff's claim. Paragraphs 22, 23, 25 and 26 should be struck out. Some further paragraphs should be amended so as to identify the facts on which allegations are made at a high level of generalisation. The plaintiff identified those facts during the course of the hearing. I have incorporated amendments to give effect to the plaintiff's intentions in the draft statement of claim attached to these reasons.
2. The essence of the plaintiff's claim is that his employer owed to him a duty of care to ensure that he was not discriminated against, harassed or bullied at his workplace. To establish such a cause of action, the plaintiff must plead a duty of care, that the defendants breached that duty of care and that the breach caused loss or damage. Loss or damage is an essential element of the cause of action.
3. The only loss or damage pleaded by the plaintiff is the physical injuries pleaded in [46] and [47]. In the course of argument, the plaintiff explained that a breach or breaches of duty pleaded in [36] to [44] caused him mental harm in the form of emotional harm. However, mental harm is only actionable if the plaintiff has suffered a recognised psychiatric illness or condition. The plaintiff denies that he has suffered such an illness or condition. Accordingly, the pleading is irrelevant except insofar as it relates to the physical injuries allegedly inflicted by Mr Nokes.
4. The plaintiff's case appears to be that QGS breached its duty of care to the plaintiff as its employee by permitting bullying and harassing within the workplace, which was constituted by or led to the assault by Mr Nokes. I will allow the claim to proceed on that basis with the pleading amendments shown in the draft statement of claim annexed to these reasons. The conduct which gives rise to the alleged injuries is the assault. Conduct subsequent to the assault is irrelevant.

1. The plaintiff pleads that Mr Nokes assaulted him and that QGS, as Mr Nokes' employer, is vicariously liable for Mr Nokes' wrong. The defendants submit that that plea discloses no reasonable cause of action because Mr Nokes' alleged action is not, and cannot be, within the scope of his employment.
2. Vicarious liability arises only where the employee's act or omission constituting the tort occurs in the course of employment. An employer may be vicariously liable for an assault by its employee when the assault was sufficiently linked to the duties of the employee. For example, an employer may be vicariously liable for an assault by a bouncer in a nightclub upon a patron. The alleged vicarious liability of the employer for Mr Nokes' conduct is not based merely on the fact that it occurred at the workplace during the course of the plaintiff's employment. It appears that the plea is that the assault occurred in the course of Mr Nokes carrying out his baggage handling duties and in the proximity of the plaintiff. I am not satisfied that the plaintiff's case is so wholly unarguable that it should be summarily struck out. However, the pleading of what happened after the alleged assault is not relevant and will be struck out.

Defamation ‑ QGS is vicariously liable for Mr Richard Yeo's defamation

1. At PSOC [64] the plaintiff pleads the imputations arising from the pleaded publication. The defendant submits that the pleaded imputations are not capable of arising from the matter complained of and are repetitive and not distinct imputations.
2. I agree that the imputations are repetitive. I will allow the imputations that the plaintiff is delusional, the plaintiff is mentally ill, the plaintiff is likely to be violent, the plaintiff exhibits irrational behaviour and the plaintiff exhibits psychotic behaviour.
3. The defendant says that those imputations are not capable of arising in the context of the publication. The context is a letter from Mr Yeo to a medical practitioner. The letter sets out a history in the course of which Mr Yeo makes these statements complained of. The history concludes with the statement:

I am now very concerned for [the plaintiff's] health and wellbeing, his safety and the safety of his colleagues in the workplace. I am directing [the plaintiff] to attend this occupational psychiatric fitness for work assessment with you.

1. The letter goes on to request a report answering questions including: what is the nature of Mr Ogbonna's medical condition/s (if any). The defendants say the words complained of are, in context, not capable of giving rise to the meaning that the plaintiff is mentally ill. The writer is setting out a history and then asking for the doctor's opinion whether or not the plaintiff suffers from any medical condition.
2. The test of deciding at the interlocutory stage whether or not the words complained of are capable of giving rise to the pleaded imputations is one of generosity not parsimony. I am not satisfied that the words complained of are not capable of giving rise to the pleaded imputations.

Defamation ‑ QGS is vicariously liable for Mr Robert Shannon's defamation

1. The defendants say that the matters pleaded in [85] to [95] are irrelevant. I accept that submission. They will be struck out.
2. The defendants further submit that the pleaded imputations at [97] are incapable of arising and are repetitive. In my opinion, imputations (i) and (ii) are capable of arising from the words complained of and are sufficiently distinct to be permitted to stand. The other imputations will be struck out.

Defamation ‑ QGS is vicariously liable for unidentified employees defamation

1. The defendants submits that [105] to [112] are irrelevant to the plea in defamation. I agree. They will be struck out.
2. The plaintiff does not press [114(a)] nor [114(d)].
3. The imputations pleaded at [115(b)] and [115(c)] are repetitive. The imputations pleaded at [115(c)(ii)] and [115(c)(iii)] will be struck out. The imputations pleaded at [115(b)] will be struck out. In their place will be the imputation that the plaintiff is a snitch and the imputation that the plaintiff is dishonest. I am not satisfied that the words complained of are not capable of giving rise to those meanings.
4. The defendants submit that the plea at [120(c)] is irrelevant to QGS' alleged vicarious liability and should be struck out. I agree.

1. Paragraphs 124 and 125 are unnecessary or repetitive. They will be struck out. Paragraph 122 may be pleaded in the amended form set out in the annexed draft statement of claim.
2. Paragraph 126 will be struck out. The court does not have power to order a defendant to make an apology.

1. The plaintiff will have leave to file and rely upon a substituted statement of claim substantially in the form set out in the annexure to these reasons.

1. The defendants seek orders that the plaintiff pay forthwith the defendants' costs of and incidental to:

(a) the plaintiff's application for leave to rely on his minute of statement of claim dated 7 July 2020;

(i) the statements of claim (or minutes of) statement of claim dated 22 April 2020, 3 and 5 June 2020 and 7 July 2020 ('statements of claim') disclosed a reasonable cause of action or were likely to prejudice delay or embarrass the fair trial of the action, and

(ii) whether leave should be granted and/or those statements of claim should be struck out;

(d) conferring with the plaintiff about those statements of claim; and

(e) preparing for directions hearings (even where those hearings were adjourned) and attending directions hearings in relation to those statements of claim, except where orders have already been made in relation to the costs of those hearings,

1. I find that orders substantially in that form should be made for the following reasons advanced by the defendants:

(a) Mr Ogbonna's statement of claim dated 22 February 2018 was struck out by consent on 3 May 2018 following the defendants' submissions dated 15 March 2018;

(b) Since then, Mr Ogbonna has filed numerous statements of claim;

(d) Some of the problems were the same problems as the statement of claim struck out on 22 February 2018;

(e) Other problems had been pointed out to Mr Ogbonna previously, or were pointed out in conferral;

(f) All the statements of claim were considered by the defendants' solicitors and counsel;

(g) The defendants' solicitors conferred with Mr Ogbonna in relation to various statements of claims;

(h) There have also been a number of hearings about how to progress Mr Ogbonna's action, because of the statements of claim;

(i) These hearings have also led to the defendants incurring costs; and

(j) The cost of the hearing on 9 June 2020 were expressly reserved.

1. The defendants ask for orders that the costs of this application and of considering and conferring in relation to previous proposed amended or substituted statements of claim, and costs of the directions hearings related to them, be paid forthwith. Paragraph 3 of consolidated practice direction 4.7.1 provides that as a general rule, where an order for costs is to be made against a party in interlocutory proceedings, the costs will be fixed and ordered to be paid forthwith or by a particular date. That direction recognises that, in exercising a discretion that is not otherwise confined, the usual practice of the court is to order that costs of interlocutory applications will be paid forthwith.[2]
2. The defendants do not ask that the costs be fixed. That is appropriate because of the multiple proposed amended or substitute statement of claim proposed by the plaintiff and considered by the defendants in relation to which the parties conferred. However, it is appropriate to order that the costs be taxed rather than that the defendants have their costs in any event, that is after the trial of the action. The costs should be taxed so that the defendants will not have to wait until the end of the action which has already been going for many years. This may also assist Mr Ogbonna because he will know the amount of the costs. Otherwise, Mr Obgonna will not know the amount of the costs for which he is liable.
3. It is not appropriate to order that the costs be paid forthwith. The costs are to be taxed. They cannot be paid until the amount to be paid has been ascertained by taxation. Accordingly, the appropriate order is that the plaintiff pay the defendant's costs of the plaintiff's application for leave to rely on his minute of proposed substituted statement of claim dated 7 July 2020 including the costs of:

(i) the statements of claim (or minutes of) statement of claim dated 22 April 2020, 3 and 5 June 2020 and 7 July 2020 ('statements of claim') disclosed a reasonable cause of action or were likely to prejudice delay or embarrass the fair trial of the action, and

(ii) whether leave should be granted and/or those statements of claim should be struck out;

(c) conferring with the plaintiff about those statements of claim; and

(d) preparing for directions hearings (even where those hearings were adjourned) and attending directions hearings in relation to those statements of claim, except where orders have already been made in relation to the costs of those hearings,

The Plaintiff, Mr Celestine Ogbonna (Mr Ogbonna) was employed by Qantas Grounds Services Pty Limited between 30 March 2015 until 4 April 2016 as a Baggage Handler at Perth Domestic Airport, Western Australia, where he sorted, loaded and unloaded passengers baggage and freight from flights.

1. The first defendant, Qantas Airways Limited, aka 'Qantas' is a private company incorporated under the Corporation Act 2001 (Cth) with registered office at Qantas Centre, Building A, 203 Coward Street, Mascot, NSW, 2020 and is engaged in air transport, inter alia, air freight, logistics, airport terminals and inflight catering etc.

1. QGS, Qantas Grounds Services Pty, aka 'QGS' is a private company incorporated under the Corporation Act 2001 (Cth) with registered office at Qantas Centre, Building A, 203 Coward Street, Mascot, NSW, 2020 and wholly owned subsidiary of Qantas and is engaged in the running of ground handling services, baggage handling facilities, cabin presentation, round transport) and warehouse freight handling.

1. On 11 March 2016, Mr Ogbonna resigned from his employment in QGS with a 4 weeks' notice given under clause 29 (a) (iii) (iv) of the Qantas Ground Services Pty Limited Enterprise Agreement 2013 (AG2013/9769) in fulfilment of terms of employment.

1. On 8 April 2016 Mr Ogbonna wrote QGS in relation to outstanding wage that QGS owes him. On 29 April 2016, Mr Kayne Meehan, a staff with Qantas wrote on behalf of QGS and advised Mr Ogbonna that QGS owed Mr Ogbonna no outstanding wages except for part of Mr Ogbonna annual leave and 4 Rostered days off (RDO) in lieu of working on a public holiday.

1. Subsequently, QGS made a payment of $1286.35 (gross) on 3 May 2016, nearly a month after Mr Ogbonna's resignation.

1. Mr Ogbonna's letter dated 8 April 2016 to QGS was based on normal rostered hours he would work had he not being stood down on false allegations. This letter outlined outstanding wages and other entitlements in tabulated form to enable QGS understand the claim and to differentiate what has being paid and those that remain unpaid.

1. Mr Ogbonna was paid the sum of $121.50 as annual leave premium, and $1,164.85 of the total claim of $16,647.27 for outstanding wages and

entitlements was paid, leaving an outstanding sum of $15,153.49 including a superannuation sum of $1,439.58.

1. Mr Ogbonna's being stood down from work was caused by Mr Richard Yeo (Mr Yeo) Port Manager at QGS, lying that Mr Ogbonna made threats which remains unsubstantiated till date. Mr Yeo later changed the reason of Mr Ogbonna being stood down to fitness for work assessment suggesting Mr Ogbonna was mentally ill.

1. Mr Yeo alleged Mr Ogbonna complained about being bullied but when asked for names of offenders did not provide any to him, unfortunately this was false being that Mr Ogbonna provided Mr Yeo with names of alleged offenders.

1. Mr Yeo standing down Mr Ogbonna for no justified reason led to lost employment income. Furthermore, defamatory medical reports prevented Mr Ogbonna from returning to work.

1. These conducts by Mr Yeo, and other Qantas and QGS employees was a repudiation of Mr Ogbonna's employment contract. Thus, Mr Ogbonna is entitled to these outstanding wages and entitlement which remains unpaid.

1. Mr Ogbonna's claim is based on Mr Yeo instruction for him not to attend work from 28 October 2015 to 3 November 2015, when Mr Yeo wilfully and knowingly lied in a referral letter. Dr Barker's opinion in the first medico legal report could be said to have been inferred from Mr Yeo false and misleading letter dated 21 September 2015 to her.

1. QGS and Qantas management insistence that Mr Ogbonna was not fit to attend work, despite knowing the content of referral letter was false and misleading and QGS refusal to give Mr Ogbonna a copy of the investigation report confirms Mr Ogbonna's workplace rights was 'adversely affected' by QGS's management decision as pleaded in paragraphs 9 to 13.

1. As a result of the matters pleaded in paragraphs 4 to 14, the outstanding wages and employment entitlements QGS owes Mr Ogbonna is $15,482.42.

1. Mr Ogbonna was employed by QGS as a baggage handler from 30 March 2015 to 4 April 2016. By reason of the matters pleaded in this statement of claim QGS later contravened the employment contract Mr Ogbonna signed with QGS and Qantas group on 30 March 2015.

1. QGS and its employees without reasonable cause from 22 June 2015, until Mr Ogbonna resigned bullied and disparaged Mr Ogbonna. These adverse behaviours created a toxic work environment which undermine his employment and made Mr Ogbonna resign.

1. The employment contract included some terms to the following effect:

(a) Mr Ogbonna was employed as a permanent part time employee into the foreseeable future;

(b) QGS would provide a work environment free from harassment, bullying, hazards, and risks that conforms to Australian workplace health and safety standards;

(c) the parties' employment relationship would be governed by Qantas group and QGS policies and applicable laws; and

(d) Mr Ogbonna's employment could be terminated under just cause immediately and without notice or payment in lieu of reasonable notice in the event of serious misconduct.

1. Mr Ogbonna pleads that QGS role as an employer came with a responsibility to ensure its workplace was free from adverse behaviours such as harassment and bullying and to make certain all employees were treated with civility, politeness, respect and dignity.

1. Qantas group's policy does state harassment would not be tolerated within its workplaces. But QGS failed in this regard when it allowed ongoing harassment and bullying behaviour to persist unchecked and which cause Mr Ogbonna distress, suffering and pain.

1. The adverse behaviours referred to in paragraphs 17 and 20 are:

(a) On 2 September 2015, Mr Ogbonna was assaulted by a fellow employee Mr Damion Nokes at Terminal 4. Mr John Spicer a QGS supervisor instructed Mr Ogbonna to go home and refused to address the complaint made.

(b) Mr Yeo and Mr John Spicer wilfully failed to obtain the incident CCTV footage within the retention period despite a request being made on time by Mr Ogbonna.

(c) On 15 September 2015 QGS instructed Mr Ogbonna that he was being stood down from work pending an investigation into an incident with no specific allegations provided in accordance with natural justice principles.

(d) On 17 November 2015, access to Mr Ogbonna's attempt to view his employment file, was denied even though it was promised initially, instead Mr Ogbonna was made to attend an impromptu meeting with Mr Yeo, Ms Caroline Hoffman, Mr Glen Barron, and Ms Rhodaniella Adewole-Osiwa in attendance.

(e) QGS wilfully failed to provide CCTV footage that would have identified employees who were not displaying their Aviation Security Identification Card (ASIC) airside or sterile area, and who were making defamatory remarks about Mr Ogbonna.

(i) Qantas and QGS employees before commencing employment at Australian airports undergo a mandatory training on the proper displaying of ASIC, which provides access to restricted areas of the airport and airside.

(ii) ASIC under reg 1.05 (2)(a) of the Aviation Transport Security Regulations 2005 (Cth) provides: For the purposes of a provision of these Regulations that refers to a person displaying a valid ASIC in a place without specifying which kind of ASIC is to be displayed, a person is taken to be displaying a valid ASIC in the place only if: the person is properly displaying a valid red ASIC.

1. QGS memo dated 05 November 2015 issued by Mr Kayne Meehan is misleading and a cover up given the mandatory training, employees get on how to display their ASIC.

1. QGS contravened the employment contract Mr Ogbonna signed with QGS and Qantas group on 30 March 2015, as follows:

(a) Mr Yeo knowingly provided false information about Mr Ogbonna to Dr Barker;

(b) QGS and its employees breached Mr Ogbonna workplace rights;

(c) Mr Robert Shannon alleging Mr Ogbonna made security threat while refusing to provide him with full details of the allegation (procedural unfairness);

(d) QGS and its employees made false allegations concerning Mr Ogbonna;

(e) QGS refused to pay Mr Ogbonna his outstanding wages; and

(f) QGS and its employees refused to provide CCTV footage of an incident scene.

1. QGS' failure to act on the complaints Mr Ogbonna made regarding to co­workers' derogatory comments and adverse behaviours toward him as pleaded in the paragraphs of this statement of claim, created a hostile work environment which caused Mr Ogbonna to suffer under these degrading behaviours.

1. As pleaded in the paragraphs of this statement of claim these employees, agents, officers and/or managers of QGS acted with malice during the period that Mr Ogbonna complained of. These conducts were done with the intent of force Mr Ogbonna to quit his job.

1. On 11 March 2016 Mr Ogbonna resigned his employment with QGS as a baggage handler to take effect from 5 April 2016 and said in his resignation letter that he resigned because of the bullying, harassments, defamation and assault he encountered.

1. QGS's management and its employees' adverse actions pleaded in this statement of claim led to the followings:

(a) failure to treat Mr Ogbonna with decency, civility and respect;

(b) failure to act in a way consistent with the provisions of the Qantas group policies;

(c) unjustifiably disparaging Mr Ogbonna's reputation;

(d) a toxic work environment or, otherwise, allowing such place to exist;

(e) attempting surreptitiously to terminate Mr Ogbonna's employment; and

(f) refused to secure CCTV footage of a assault in attempt for to evade liability.

1. QGS knew or ought to have known that their actions described in the preceding paragraph would cause Mr Ogbonna mental, emotional, and physical harm and distress, as well as financial loss, for which QGS is liable.

1. On 11 March 2016 Mr Ogbonna resigned from QGS, in his resignation letter Mr Ogbonna explained that his employment with QGS was impossible due to the facts at [23] and [27].

1. The above stated facts and applicable law does show Mr Ogbonna was constructively dismissed from his employment, without just cause, and the constructive dismissal by QGS with Mr Ogbonna left no other option than to resign.

31. As a result of QGS's action, Mr Ogbonna claim the following damages:

(a) declaration that Mr Ogbonna was constructively dismissed when he resigned from his employment on or about 4 April 2016;

(b) declaration that Mr Yeo breached workplace rights of Mr Ogbonna when he wrote false referral letter resulting in a medical reports that said he was not fit for duty;

(c) declaration that QGS breached Mr Ogbonna's employment contract by failing to provide a safe work environment in line with workplace health and safety standards;

(d) general damages for constructive dismissal, and wrongful termination of Mr Ogbonna's employment amounts to $80,000.00.

1. From 22 June 2015 to 15 September 2015 before Mr Ogbonna was stood down from work duties at QGS. Mr Ogbonna was constantly bullied, harassed, and disparaged as particularised in this statement of claim and he made complaints in relation to these incidents to QGS management at various times.

1. Mr Ogbonna first meeting with Mr Yeo to complain about one of the bullying incidents was on 7 July 2015 with Mr Ejiro Okumagba present (Mr Ogbonna's support person).

1. These bullying behaviours by other employees went unabated because QGS management took no adequate steps to address the problem. As a result, the

lack of a meaningful action led to a hostile work environment which became unbearable for Mr Ogbonna.

1. Mr Ogbonna expected QGS to provide a safe work environment as per his employment contract by acting quickly and decisively to tackle bullying behaviour whenever it was reported but QGS failed to do so which embolden the bullies.

1. On 2 September 2015, Mr Damian Nokes a co-worker assaulted Mr Ogbonna while he was working within the baggage handling area terminal 4 -Perth airport.

(a) failed to address the non-compliance of 'Qantas standards of conduct policy' (the Policy) which applies to employees employed within the Qantas Group;

(b) failed to provide a safe work environment to protects Mr Ogbonna, from harm and injury pursuant to Occupational Safety and Health Act 1984 (WA) and Work Health and Safety Act 2011 (Cth);

(c) failed to act as regards their statutory and general duties owed to Mr Ogbonna by not taking adequate steps to stop other employees from harassing or bullying him; and

(d) failed to take adequate steps to properly investigate other QGS employees, in relations to Mr Ogbonna complaints about bullying and harassments.

1. As a result of the assault, Mr Ogbonna sustained a sprained right arm and shoulder, endured pain, suffering and inconvenience.

(c) Mr Ogbonna still suffers occasional pain during cold weather.

1. QGS failure to address the persistent bullying embolden Mr Damian Noke, to assault Mr Ogbonna. Mr Ogbonna claim the following damages:

Battery and Assault (QGS is vicariously liable for Mr Damion Nokes's action)

At the material time, Mr Damion Nokes (Mr Nokes) was an employee of QGS and working as a baggage handler at the Qantas baggage handling facility at Terminal 4 Perth airport.

1. On 2 September 2015, as Mr Ogbonna scanned and checked in baggage, Mr Nokes acted aggressive and confrontational as he passed by, warranting Mr Ogbonna to become reasonably apprehensive of Mr Nokes making physical contact with force.

1. On 2 September 2015, as Mr Ogbonna focused on the task he was performing, Mr Nokes struck Mr Ogbonna using his elbow with force while Mr Ogbonna was busy working and did not consent to the contact by Mr Nokes in any way.

1. Mr Nokes' physical contact, a forceful strike was not accidental but done intentional and voluntarily to cause hurt and humiliation to Mr Ogbonna.

1. Mr Nokes' strike was a direct contact on Mr Ogbonna and the physical contact was substantially certain to cause harm and injury to Mr Ogbonna, as it was deliberate, dangerous and detrimental to Mr Ogbonna safety and wellbeing.

1. The contact caused Mr Ogbonna some harm and was offensive, the contact was intended to injure, disfigure, impair, or cause pain to Mr Ogbonna. As a result, Mr Nokes' dangerous forceful strike, was harmful and caused Mr Ogbonna injury.

1. The contact and force used by Mr Nokes on Mr Ogbonna was not justifiable and his action was reckless and caused harm and injury to Mr Ogbonna as a direct result of Mr Nokes' physical contact with force and the elements of a cause of action for battery was satisfied.

1. QGS is vicariously liable for Mr Nokes' physical contact with force on Mr Ogbonna. Mr Nokes' act occurred in the scope and course of his employment as an employee, agent, officer and/or manager of QGS. There is an established requisite relationship between QGS and the tortfeasor.

1. Mr Nokes' physical contact with force on Mr Ogbonna makes Mr Ogbonna entitled to damages for the harm and consequential damage this caused him because of Mr Nokes' 'assault and battery' which makes QGS liable for $30,000.00 as general damages.

Defamation (QGS is vicariously liable for Mr Richard Yeo's defamation)

1. At the material time, Mr Richard Yeo was an employee of QGS and working as the Port Coordinator, with QGS at Terminal 4, Perth Domestic Airport, Perth, Western Australia.

1. On 21 September 2015, Mr Yeo sent a referral letter containing false and misleading information concerning Mr Ogbonna to Dr Barker (Referral letter dated 21.09.2015).

1. Defamatory statement is evidence in defamation proceedings that the document so printed, produced, published, or distributed is proof of publication under s 41 (1) of the Defamation Act 2005 (WA).

1. The natural and probable consequence of Mr Yeo saying the words set out below in paragraph 54 was that the defamatory meaning (as defined below) were published as part of the referral letter and as a consequence of the matters set out. QGS is vicariously liable for Mr Yeo's publication of the defamatory statements to Dr Barker.

1. On the referral letter dated 21 September 2015, the following defamatory statements written by the Mr Yeo were used to describe Mr Ogbonna:

At paragraph 6- referral letter dated 21 September 2015

(a) '... (Plaintiff) claims that he is allegedly being followed when he is driving home from work and allegedly trying to run him off the road;

• Becomes 'uncontrollably distraught' and highly emotional breaking down into tears during conversation.
• when I have tried to obtain particulars as to who were bullying and harassing him in the workplace, Celestine declines to provide these details but stated that people would be 'accountable in the eyes of God.'
• ... These people know who they are and they will be judged and their children will face judgement' also 'those people will be made to answer'.

At paragraph 8- referral letter dated 21 September 2015

(b) Celestine made several comments to the security guard that the guard considered abnormal. The security guard observed that he (plaintiff) was agitated stating, 'Did you see them looking at me?', when the guard inquired who, celestine stated 'Them over there, they are always talking about me, always make allegations and trying to assassinate my character' The guard could not see anyone standing in the direction that Celestine was pointing. Celestine then stated, 'when the time comes, they will be sorry.'

1. The natural and ordinary meaning of Mr Yeo's statement is that (defamatory meanings):

1. By reason of the publication of each defamatory meaning in the manner pleaded herein, Mr Ogbonna:

(b) compensate him for the distress and embarrassment caused by the publication of the defamatory meanings; and

(c) reflect the natural and probable extent of publication and further, that the meanings may spread.

59. Further, Mr Yeo published the defamatory meaning when:

(a) he knew it may be inferred-if it is not admitted-from their very nature, that they would cause a person who heard them to think less of and shun and avoid Mr Ogbonna;

(b) he was indifferent to the truth or falsity of them; and

(c) his indifference to their truth or falsity was, it may be inferred-if it is not admitted from their very nature, reckless;

1. The harm suffered by Mr Ogbonna has been aggravated by the following matters (and Mr Ogbonna thereby claim aggravated damages):

(a) Mr Ogbonna's knowledge of the matter in paragraph 59 above;

(b) Mr Ogbonna's knowledge that the defamatory meanings are untrue;

(c) Mr Yeo refusal to correct the defamatory statement when informed by Mr Ogbonna on the morning of 24 September 2015; and

Mr Yeo unjustifiable failure to retract or apologise for the publication of the defamatory meanings;

1. Mr Ogbonna claim the following relief against QGS under the common law doctrine of vicarious liability for the acts or omissions committed by Mr Yeo (the tortfeasor) in the scope and course of his employment as an employee, agent, officer and/or manager of QGS:

(a) compensatory damages for non-economic loss provided for under section 35 of the Defamation Act, be in the amount of $389,000.00, an amount which reflects upon the seriousness of the meaning, the extent of the harm caused by the Mr Yeo; and

(b) aggravated compensatory damages in the amount of $50,000.00 being for the additional harm suffered by Mr Ogbonna as a result of the matter set out in paragraph 60 herein.

Defamation (Qantas is vicariously liable for Mr Kayne Meehan's defamation)

1. At the material time, Mr Kayne Meehan (Mr Meehan) was an employee of Qantas and working as QGS Regional Manager- Victoria; South Australia; Western Australia; and Northern Territory, at Qantas Centre, Building A, 203 Coward Street, Mascot, NSW.

1. On 2 December 2015, Mr Meehan sent referral letter containing false and misleading information concerning Mr Ogbonna to Dr Barker (Referral letter dated 02.12.2015).

1. Defamatory statement is evidence in defamation proceedings that the document so printed, produced, published, or distributed is proof of publication under section 41 (1) of the Defamation Act 2005 (WA).

1. The natural and probable consequence of Mr Meehan saying the words set out below in paragraph 66 was that the defamatory meanings (as defined below) were published as part of the referral letter and as a consequence of the matters set out. Qantas is vicariously liable for Mr Meehan's publication of the defamatory statements to Dr Barker.

1. On the referral letter dated 2 December 2015, the following defamatory statements written by Mr Meehan were used to describe Mr Ogbonna:

Paragraph 12- letter dated 2 December 2015 (Referral letter)

(a) Mr Ogbonna made nonspecific threats against the company including that he was 'going to go out with bang', 'something is going to happen' 'God is going to do it'...

The natural and ordinary meaning of Mr Meehan's statement is that (defamatory meanings):

(ii) The plaintiff is a danger to the general public

1. By reason of the publication of each defamatory meaning in the manner pleaded herein, Mr Ogbonna:

(b) compensate him for the distress and embarrassment caused by the publication of the defamatory meanings; and

(c) reflect the natural and probable extent of publication and further, that the meanings may spread.

71. Further, Mr Meehan published the defamatory meaning when:

(a) he knew it may be inferred-if it is not admitted-from their very nature, that they would cause a person who heard them to think less of and shun and avoid Mr Ogbonna;

(b) he was indifferent to the truth or falsity of them;

(c) his indifference to their truth or falsity was, it may be inferred-if it is not admitted from their very nature, reckless.

1. The harm suffered by Mr Ogbonna has been aggravated by the following matters (and Mr Ogbonna thereby claim aggravated damages):

(a) Mr Ogbonna's knowledge of the matter in paragraph 71 above;

(b) Mr Ogbonna's knowledge that the defamatory meanings are untrue;

Mr Meehan was informed Mr Yeo's referral letter was false and knowing the truth continued in disparaging Mr Ogbonna's reputation; and

(d) Mr Meehan's unjustifiable failure to retract or apologise for the publication of the defamatory meanings.

1. Mr Ogbonna claims the following relief against Qantas under the common law doctrine of vicarious liability for the acts or omissions committed by Mr Meehan (the tortfeasor) in the scope and course of his employment as an employee, agent, officer and/or manager with Qantas:

(a) compensatory damages for non-economic loss provided for under section 35 of the Defamation Act, be in the amount of $389,000.00, an amount which reflects upon the seriousness of the meaning, the extent of the harm caused by Mr Meehan; and

(b) aggravated compensatory damages in the amount of $50,000.00 being for the additional harm suffered by Mr Ogbonna as a result of the matter set out in paragraph 81 herein.

Defamation (QGS is vicariously liable for Mr Robert Shannon's defamation)

1. At the material time, Mr Robert Shannon (Mr Shannon) was an employee of QGS and working as a QGS Supervisor or in a similar position, at Terminal 4, Perth Domestic Airport, Perth, Western Australia.

1. On 15 September 2015 as Mr Ogbonna went about his normal duties, Mr Shannon called Mr Ogbonna and in the presence of other co-workers falsely accused Mr Ogbonna of making a security threat. When asked to clarify, Mr Shannon wilfully refused to provide the name of the security guard whom he said allegedly told him about the incident.

1. On 15 September 2015, Mr Shannon spoke the following defamatory statements during his conversation with Mr Ogbonna in the presence of other QGS employees at QGS baggage processing area, terminal 4: Perth Domestic Airport, Western Australia:

(a) Mr Ogbonna was asked the following question by Mr Shannon in the presence of another QGS employees:

'Celestine, a security guard told me you made a security threat this morning'

'It is a hearsay, but I want to confirm that from you as security threat are a big issue at the airport'

'I prefer to reply to a written query so that there is a record of it'

'I would have to escalate this matter to the federal police, as leaving you here would endanger other people'

1. The natural and ordinary meaning of Mr Shannon's statement is that (defamatory meanings):

(ii) The plaintiff is a danger to the general public.

1. By reason of the publication of each defamatory meaning in the manner pleaded herein, Mr Ogbonna:

(b) compensate him for the distress and embarrassment caused by the publication of the defamatory meanings; and

(c) reflect the natural and probable extent of publication and further, that the meanings may spread.

81. Further, Mr Shannon published the defamatory meaning when:

(a) he knew it may be inferred - if it is not admitted - from their very nature, that they would cause a person who heard them to think less of and shun and avoid Mr Ogbonna;

(b) he was indifferent to the truth or falsity of them; and

(c) his indifference to their truth or falsity was, it may be inferred - if it is not admitted from their very nature, reckless.

1. The harm suffered by Mr Ogbonna was aggravated by the following matters (and Mr Ogbonna thereby claim aggravated damages):

(a) Mr Ogbonna's knowledge of the matter in paragraph 81 above;

(b) Mr Ogbonna's knowledge that the defamatory meanings are untrue;

(c) Mr Shannon publicly humiliated Mr Ogbonna knowing the allegation were false and asked for him to be escorted out of the airport with domestic passengers staring at Mr Ogbonna; and

(d) Mr Shannon's unjustifiable failure to retract or apologise for the publication of the defamatory meanings.

1. Mr Ogbonna claim the following relief against QGS under the common law doctrine of vicarious liability for the acts or omissions committed by Mr Shannon (the tortfeasor) in the scope and course of his employment as an employee, agent, officer and/or manager with QGS:

(a) compensatory damages in the amount of $389,000.00, an amount which reflects upon the seriousness of the meaning, the extent of publication and the harm caused by Mr Shannon; and

(b) aggravated compensatory damages in the amount of $50,000.00 being for the additional harm suffered by Mr Ogbonna as a result of the matter set out in paragraph 82 herein.

Defamation (QGS is vicariously liable for Unidentified Employees' defamation)

1. At the material time, these unidentifiable persons were QGS employees and working in various roles at QGS, terminal 4, Perth Domestic Airport, Perth, Western Australia.

1. The natural and probable consequence of these unidentified QGS employees' saying these words set out below in subparagraphs 86 (a), and (b), were that the defamatory meaning (as defined below) were published as part of the statements made at various dates and times and as a consequence of the matters set out, QGS is vicariously liable for these unidentified QGS employees' publication of these defamatory statements to other QGS employees.

1. Between 7 September 2015 and the 15 September 2015, Mr Ogbonna was harassed, bullied, and humiliated by these unidentified QGS employees.

(a) on 10 September 2015, a staff member in the accompanied by other employees said 'rat' as he passed by Mr Ogbonna.

(b) on 13 September 2015, a staff member in the accompanied by other employees said 'thief on the loose' as he passed Mr Ogbonna.

1. The natural and ordinary meaning of the statements by these unidentified QGS employees is that (defamatory meanings):

1. By reason of the publication of each defamatory meaning in the manner pleaded herein, Mr Ogbonna:

(b) compensate him for the distress and embarrassment caused by the publication of the defamatory meanings; and

(c) reflect the natural and probable extent of publication and further, that the meanings may spread.

1. Further, these unidentified QGS employees published the defamatory meaning when:

(a) they knew it may be inferred - if it is not admitted - from their very nature, that they would cause a person who heard them to think less of and shun and avoid Mr Ogbonna;

(b) they were indifferent to the truth or falsity of them; and

(c) the indifference to their truth or falsity was, it may be inferred - if it is not admitted from their very nature, reckless.

1. The harm suffered by Mr Ogbonna was aggravated by the following matters (and Mr Ogbonna thereby claim aggravated damages):

(a) Mr Ogbonna's knowledge of the matter in paragraph 91 above;

(b) Mr Ogbonna's knowledge that the defamatory meanings are untrue; and

(c) These unidentified QGS employees unjustifiable failure to retract or apologise for the publication of the defamatory meanings.

1. Mr Ogbonna claims the following relief against QGS for the acts or omissions by these unidentified QGS employees (the tortfeasors) in the scope and course of their employment with QGS:

(a) A single cause of action exist even if more than multiple defamatory imputations occurs in the same defamatory matter pursuant to s 8 of the Defamation Act. But the publications by these unidentified QGS employees were two separate cases of defamation published on 10 and 13 of September 2015 respectively;

(b) compensatory damages in the amount of $720,000.00, an amount which reflects upon the seriousness of the meaning, the extent of publication and the harm caused by these unidentified QGS's employees; and

(c) aggravated compensatory damages in the amount of $127,517.58 being for the additional harm suffered by Mr Ogbonna as a result of the matter set out in paragraph 92 herein.

1. Qantas and QGS are vicariously liable for the acts or omissions of their employees, agents, officers and/or managers as pleaded in the paragraphs of this statement of claim.

1. Qantas wholly owns QGS, and there is no clear separation in the operations of QGS affairs in principle. Qantas proprietary interest in QGS and ongoing supervision of QGS means the parent company is not exempt from the liability of its subsidiary, QGS. For instance, Mr Kayne Meehan worked as a manager at QGS notwithstanding the fact he is a Qantas employee. Dr Russell Brown, a Qantas employee and chief medical officer also oversees concerns in relation to QGS employees.

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

[1] Tobin v Dodd [2004] WASCA 288 [15] (Heenan J).

[2] Frigger v Kitay [No 3] [2014] WASC 24 [68] (Allanson J).