FEDERAL COURT OF AUSTRALIA

Nyoni v Chee Koon Hee [2013] FCA 701

THE COURT ORDERS THAT:

1.    The applicant’s interlocutory application dated 22 May 2013 is dismissed.

2.    The applicant pay the fifth, eighth, ninth, eleventh and twelfth respondents’ costs on an indemnity basis, to be taxed if not agreed, and paid forthwith.

3.    The costs of the first, second and seventh respondents be reserved.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    I delivered ex tempore reasons in relation to the application by the applicant upon his application dated 22 May 2013 seeking urgent interlocutory injunctive relief. These are those edited reasons but not so as to alter the substance of them.

2    The applicant was self represented. I have taken this fact into account in the way I have approached my consideration of his application and the materials he has tendered in support. However, such a beneficent approach to his application is not without limits. I cannot fill gaps in his material, and there are substantial gaps.

3    I have no doubt that, so far as the applicant is concerned, he feels that he has legitimate complaints as against the several respondents. The question is whether he has managed to articulate those complaints in a coherent fashion so as to assert claims in a way that give rise to serious issues for trial as between him and the several respondents. In this respect I have taken account of the matters of fact which the applicant outlined in his oral submissions, even though almost all of these were not deposed to in an affidavit by him. None of the counsel for those respondents before the Court objected to my taking that course.

4    However, none of this additional material, the subject of oral submissions, in my view, adds anything to the claims for injunctive relief, particularly so in relation to the relief sought as against the first, second and seventh respondents concerning the contracts which I will shortly describe, or as against the ninth respondent, the Chief Executive Officer of the Health Department of the State of Western Australia in relation to a notice issued under the Regulations to the Poisons Act 1964 (WA) (the Poisons Act) to which I will also shortly come.

5    The applicant is a pharmacist who for some time has carried on a pharmacy business in Kellerberrin in Western Australia. He executed, as seller, two agreements; the first, by way of offer and acceptance, was with the seventh named respondent and others as buyers on 13 March 2013 for the sale and purchase of property at 92 Massingham Street, Kellerberrin. The buyers under that agreement paid a deposit of $5000. The second agreement was made between the applicant, as seller, and the seventh named respondent, as purchaser, by a written agreement also dated 13 March 2013 for the sale and purchase of the Kellerberrin Pharmacy. The applicant has purported to rescind both of those agreements, but the purchasers have not accepted this. Rather they have elected to affirm the agreements and indeed propose to issue proceedings in the Supreme Court of Western Australia for specific performance of each of them.

6    The applicant instituted these proceedings on 20 May 2013 alleging breach of ss 18 and 22 of the Australian Competition and Consumer Act 2010 (Cth) and s 52 of the former Trade Practices Act 1974 (Cth). He seeks relief by way of orders the setting aside of the agreements of sale. The interlocutory relief sought by him is to restrain enforcement of the sale agreement for the pharmacy and the premises at 92 Massingham Street, Kellerberrin.

7    He also seeks relief against the Chief Executive Officer of the Health Department by way of an order revoking or suspending a notice dated 24 April 2013 issued in relation to a Schedule 8 poisons licence. As against that respondent, the interlocutory relief sought is by way of an injunction to stop the revocation of the applicant’s Schedule 8 licence and an order addressed to the Delegate of the Chief Executive Officer to suspend or revoke the notice dated 24 April 2013. The applicant seeks relief against Alleasing Pty Ltd, the eighth respondent, for alleged unconscionable conduct. The interlocutory injunctive relief sought is for an order to stop all proceedings by Alleasing, including a property seizure order issued in January 2013 against the applicant. The originating application claims damages for conspiracy and damages for past, present and future earnings without any attempt to attribute those to any particular cause of action.

8    The applicant also seeks, in his interlocutory application, injunctive relief by way of orders as against the first, second, fifth, sixth and twelfth respondents, that they each cease publishing defamatory imputations to the public in respect of him. The application for interlocutory relief is supported by the applicant’s statement of claim as well as two affidavits sworn by him on 22 May 2013 and as I mentioned earlier, additional matters of fact which were the subject of oral submissions before the Court this afternoon.

9    The statement of claim sets out the capacities of the applicant and the several respondents. There then follows a series of disconnected allegations which are somewhat difficult to comprehend and which, in any event, are highly generalised. The pleading does not articulate, in any comprehensible way, material facts which could even arguably amount to misleading and deceptive conduct or unconscionable conduct as alleged in the originating application. Neither the originating application nor the statement of claim contains allegations of defamation although, as I mentioned, the application before the Court today seeks interlocutory relief for alleged defamation.

10    One handwritten affidavit by the applicant deposes that he has rescinded “that contract on 3 May 2013 for its misleading and deceptive formation”. He does not depose to what that alleged conduct was, nor is it revealed in the statement of claim, however, it is the subject of a description in a set of outline of submissions filed by him and to which I will come shortly. In fact, the statement of claim makes no allegations whatsoever against the purchasers in this respect. The applicant’s other typewritten affidavit reads more like a set of submissions than an affidavit setting out material facts. This really is the product of someone who is not legally trained and it is an example of a situation where I have approached the application in a way more generously than otherwise might be the case were he represented by a legal practitioner.

11    To the extent that the applicant deposes to facts, these are again of a highly generalised nature. It is spiced with colourful phrases such as “secret Court in NSW” and “‘kangaroo’ Courts”. To illustrate this, under the rubric of “Serious Issues To Be Tried” in para [3] of his affidavit, the applicant deposes:

(i)    Chee Koon Hee and Devish Seth in collusion with Frabk Peczka, Raymond Griffiths, Andrew van Ballegooyen, Theresa Beech and Jillian Murphy crippled applicant’s pharmacy by driving down business to destroy applicant’s business using injurious falsehood, defamation and cospiracy.

(ii)    Once achieved their aims, in spite of applicant’s resilience they went on to make offers to the applicant to buy or die using undue influence. Sale based on misleading and deceptive conduct. Role [of] the other respondents, such as Health Department and Alleasing Pty Ltd amounted to conspiracy and unconscionable conduct.

Transcribed without amendment.

12    It may be seen that these very general allegations are not underpinned by any detailed facts deposed to or otherwise put before the Court by the applicant. Alleasing has put on an affidavit in opposition to the injunctive relief sought against it. It is an affidavit sworn by Mr Stephen Green, one of its lawyers. He deposes that Alleasing has a judgment in its favour from the Local Court of New South Wales dated 15 August 2012 in the amount of $26,787.12. The applicant unsuccessfully applied to that Magistrates Court to set aside the judgment.

13    Mr Chee Koon Hee, the first respondent, and the sole director of the seventh respondent has sworn a lengthy and detailed affidavit of 1 June 2013. It sets out in clear terms events leading up to the execution of the two agreements for the sale and purchase of the land and the pharmacy business respectively. He deposes that the seventh respondent wishes to institute proceedings in the Supreme Court of Western Australia for specific performance of the contracts but has not done so, constrained as he considers it is, by these proceedings instituted in this Court.

14    The legal principles applicable to a consideration of an application for interim interlocutory and injunctive relief are well established and are to be found in decisions of the High Court such as a Castlemaine Tooheys Limited v The State of South Australia (1986) 161 CLR 148 and Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at [19], [65]. It is unnecessary to set these out here, other than to say that this application for injunctive relief, in my view, falls at the first hurdle. That is to say that the applicant has failed to establish that there is, as against any of the respondents, a serious issue to be tried. His claims, and I do not say this pejoratively, but it is the fact that they are, at least in a legal sense, almost incoherent and certainly do not establish material facts disclosing the alleged causes of action.

15    As concerns the first, second and seventh respondents, there is a complete vacuum of material facts which would be needed to raise even a prima facie set of issues.

16    The same is the case in respect of the third respondent, Mr Frank Peczka, the current Chief Executive Officer of the Shire of Narembeen and formerly and relevantly, the Chief Executive Officer of the Shire of Kellerberrin. It is instructive to consider the pleading as against him in the statement of claim. It is alleged at [18] that in September 2003 the applicant purchased the Kellerberrin Pharmacy through a self supporting loan including a house construction loan facilitated by the Kellerberrin Shire, Mr Peczka and/or the former shire president. Mr Peczka is alleged, at [30], to have assisted the first and second respondents to purchase pharmacies at Bruce Rock and Narembeen. Then, at [31], the applicant alleges, relevantly, that through the actions of the third to sixth respondents, as set out at [21] to [23] of the statement of claim, the applicant’s pharmacy business continued to decline despite heavy financial investments. However, [21] and [22] of the statement of claim do not even mention the third respondent. Paragraph [23] alleges that competing suppliers run by the fourth, fifth, sixth, tenth and twelfth respondents have been operating since 2006 under the close supervision and support of a number of respondents, including the third respondent. Then, at [33] and following the pleading asserts that Alleasing, which has established contact with a number of respondents, including the third respondent, were somehow involved with a contract concerning Kodak and direct debits from the applicant’s account of $663 a month.

17    The third respondent, at [41] to [43] of the statement of claim, upon this basis, is alleged to have engaged in unjustifiable action for the purpose of bankrupting the applicant in combination with each other and used criminal or unlawful means to accomplish an unlawful purpose, as well as engaging in misleading conduct and unconscionable conduct. That rather lengthy description of the asserted causes of action as against the third respondent demonstrates what I mean by the pleading being incoherent in the legal sense.

18    Similar allegations are made as against the fourth, fifth and sixth respondents, although it is difficult to ascertain exactly what is alleged as against each respondent.

19    No relief is claimed in the statement of claim as against any respondent expressly, other than Alleasing, however, implicitly it appears that relief is claimed as against all of them, including revocation or suspension of the notice of 24 April 2013.

20    The affidavits of the applicant do not depose to most of the matters pleaded, rather they are a set of generalised assertions largely disconnected and are at their highest, as set out under the rubric, “Serious Issues To Be Tried” in the typewritten affidavit which I have set out above. Collectively they fall well short, in my opinion, of deposing to material facts establishing serious issues to be tried concerning discernible causes of action.

21    There was an attempt by the applicant to particularise the allegations of misleading and deceptive conduct in his written submissions responsive to the affidavit filed on behalf of the first, second and seventh respondents. The relevant part is found on pg 2 where the applicant refers to the copy of the agreement for the sale of the land by offer and acceptance which is an annexure to the affidavit of the first respondent. The submission is made by the applicant that the signatures referred to in that agreement, obtained by facsimile and later emailed, are illegible. He submits that the obscure signatures and those behind them intended to mislead or deceive the applicant by concealing the real faces behind the purchase who, he asserts, have now emerged as the Shire of Kellerberrin, Mr Peczka and Raymond Griffiths, the fifth respondent, who on or about 20 May 2013 signed a contract with Dryandra Hostel for the service to be provided from Kellerberrin Pharmacy. Again, quite apart from the dislocation of thought evident in what has been set out in those submissions, it does not, either alone or in combination with anything else put up by the applicant, demonstrate a cause of action and certainly does not indicate that there is a serious issue to be tried in relation to that agreement or the agreement for sale and purchase of the business.

22    Such also is the position, in my view, as concerns the ninth respondent, the Chief Executive Officer of the Department of Health and the twelfth respondent, Ms Beech. The applicant, as a pharmacist, is able, subject to the Poisons Act, to deal in poisons set out in a schedule in Appendix A of that Act. The authority for a pharmacist to manufacture, have in their possession and to use, supply or sell, in their pharmacy, such poisons is, by s 23(2) of the Poisons Act, subject to such conditions and restrictions as may be prescribed and subject to any notice given by the Chief Executive Officer pursuant to regulations made under s 64(2)(ha) of that Act. Regulation 43A of the Poisons Regulations 1965 (WA) authorises the Chief Executive Officer to revoke, by notice, the authority conferred on a pharmacist by s 23(2) of the Act in relation to poisons included in Schedule 8.

23    Notice of revocation pursuant to that power was given to the applicant in respect of Schedule 8 poisons. The notice is directed to the applicant personally and not to the pharmacy business. There is a real issue as to whether this court has jurisdiction to revoke or suspend such a notice issued under a regulation made pursuant to legislation enacted by the Parliament of Western Australia. It is not, on its face, a Federal matter, nor am I able to see that the claims falls within the accrued jurisdiction of the Court as being attached to some other Federal claim in the proceeding.

24    It is far from apparent, for example, how this claim might be said to attach to the misleading and deceptive claims even allowing for their non-specific character: see Re Wakim; Ex parte McNally (1999) 198 CLR 511 at [140] per Gummow and Hayne JJ. Again it seems, on their face, that those claims are quite discrete from those concerning the ninth and twelfth respondents. However, I will, for present purposes only, assume that the Court does have jurisdiction in relation to this aspect of the applicant’s claims.

25    As concerns the claim against the Chief Executive Officer of the Department of Health, the statement of claim at [22], pleads that he sent a notice revoking the applicant’s licence to dispense Schedule 8 poisons, an essential component of a pharmacy business. However, the applicant has not made any assertion or submission that could call into question the validity of the exercise of the statutory discretion exercised by the CEO, nor anything that could entitle him, in my view, to the relief sought against the CEO. The applicant has adduced no evidence of the notice, the circumstances surrounding its issue or the impact of the notice on his business in any specific sense. Plainly, there will be a consequence upon the issue of such a notice. That, however, does not make the issue of the notice actionable. Accordingly, I am not satisfied that the applicant has made out a serious issue to be tried in relation to the claims as against the ninth respondent.

26    No interlocutory relief is sought as against the eleventh respondent.

27    As concerns the twelfth respondent, the originating application makes no claim against her and the statement of claim fails to plead any alleged defamatory imputations published by her. Accordingly, again, I am satisfied that no prima facie case has been demonstrated by the applicant entitling him to the claimed interlocutory injunctive relief.

28    For all these reasons, I would dismiss the application of the applicant as against each of the respondents.

Costs

29    The respondents, other than the first, second and seventh respondents seek costs on an indemnity basis and that they be paid forthwith. The first, second and seventh respondents have asked that their costs be reserved to the hearing of their interlocutory application filed on 7 June 2013.

Costs - general principles

30    In the exercise of the Court’s discretion to order costs under s 43 of the Federal Court of Australia Act 1976 (Cth) (the FCA Act), costs ordinarily follow the event and the successful litigant will receive its costs, unless special circumstances justify some other order.

31    The ordinary practice of this Court is that the unsuccessful party, usually, will be required to pay the costs of the successful party on a party and party basis, and that practice is not departed from unless the justice of the particular case so requires or some special or unusual feature arises.

32    Although s 43 of the FCA Act confers a broad discretion with respect to costs, generally, an award of costs is not taxed and paid until the completion of the proceeding.

Indemnity Costs

33    A party entitled to costs may apply to the Court for an order that costs awarded in their favour be paid other than as between party and party.

34    To warrant a departure from the ordinary rule that costs be paid on a party and party basis, there should be some special or unusual feature in the case. The question must always be whether the particular facts and circumstances of the case warrant the making of an order for payment of costs other than on a party and party basis.

35    Indemnity costs are not designed to punish a party for persisting with a case that turns out to fail. They are not awarded as a means of deterring litigants from putting forward arguments that might be attended by uncertainty. Rather, they serve the purpose of compensating a party fully for costs incurred, as a normal costs order could not be expected to do, when a Court takes the view that it was unreasonable for the party against whom the order is made to have subjected the innocent party to the expenditure of costs.

36    Indemnity costs are appropriate in circumstances such as where allegations were made which ought never to have been made, and is ordinarily enlivened where an action is commenced when proper advice would indicate that the proceeding has no prospect of success.

37    Although the Courts are more reluctant to make orders for indemnity costs against litigants in person than legally represented ones, in appropriate cases they will do so.

38    In Cirillo v Consolidated Press Property Ltd (formerly known as Citicorp Australia Limited) (No 2) [2007] FCA 179 at [5]-[6], features that justified the finding that it was unreasonable for an applicant to have subjected respondents to the expenditure of costs, and the making of an order for indemnity costs were that: the claims had no prospect of success; the pleaded causes of action were offensive and embarrassing, the nature of which was to put the parties to considerable expense and effort both to penetrate what was being said for the purposes of divining what may have been alleged against them and adequately to respond to the pleading; and the pleading made allegations of impropriety without anything to indicate there was any reasonable prospect of success in relation to making out those allegations.

39    The features that justified an indemnity costs order in Cirillo, are all present in these proceedings.

40    The applicant has put the respondents, who are seeking costs immediately, to the expense of defending an interlocutory application for an injunction which, for reasons I have explained, is wholly without merit. Sound legal advice would never have allowed this obscurely worded scatter-gun of complaints to have been prosecuted to this point in the manner it has.

41    The respondents ought be compensated fully for their costs incurred in relation to the interlocutory application, on an indemnity basis.

Forthwith costs order

42    The authorities identify three classes of cases in which the Courts might order costs payable forthwith. One of those classes concerns where the decision on the application determines a separately identifiable matter or may be viewed as the completion of a discrete aspect of the matter: Complete Technology Integrations Pty Ltd v Green Energy Management Solutions Pty Ltd [2011] FCA 1319 at [127]; Fiduciary Ltd v Morningstar Research Pty Ltd (2002) 55 NSWLR 1 at 4–5; Australian Agricultural Co Ltd v AMP Life Ltd [2003] FCA 1134.

43    As was the case in Australian Agricultural Co Ltd, the applicant’s application for an interlocutory injunction can fairly be regarded as a self-contained part of the proceedings against the relevant respondent, the failure of which application for an injunction effectively means that the claim for this form of relief against them has been finally disposed of.

44    I will order that the applicant pay the fifth, eighth, ninth, eleventh and twelfth respondents’ costs on an indemnity basis, to be taxed if not agreed, and paid forthwith.

Associate:

Dated:    18 July 2013