FEDERAL COURT OF AUSTRALIA

Nyoni v Chee Koon Hee (No 2) [2014] FCA 83

THE COURT ORDERS THAT:

1.    The applicant’s application for an extension of time for leave to appeal is dismissed.

2.    The applicant’s application for leave to appeal is dismissed.

3.    The applicant’s interlocutory application for an injunction is dismissed.

4.    The applicant pay the costs of the respondents, to be taxed if not agreed.

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

REASONS FOR JUDGMENT

INTRODUCTION

1    Mr Nyoni applies for interlocutory relief against all of the respondents. In essence, he seeks an extension of time in which to apply for leave to appeal from a judgment of a judge of this Court, leave to appeal from that judgment and an injunction restraining the first, second and seventh respondents from taking certain proceedings in the Supreme Court of Western Australia. His applications were supported by affidavits. Similarly, there were affidavits in response. Mr Nyoni appeared in person to argue his application.

2    For reasons that follow, each of the applications must be refused.

BACKGROUND

3    Mr Nyoni issued proceedings against the respondents in connection with the sale of his pharmacy business and land in Kellerberrin, rural Western Australia (Sale Contracts).

4    The key facts on which Mr Nyoni relied to support his claim were set out in the primary judgment (Nyoni v Chee Koon Hee (No 4) [2013] FCA 948) (at [2]-[10]) as follows:

2    [Mr Nyoni], a pharmacist, sold his pharmacy business, as well as the land at 92 Massingham Street, Kellerberrin, in Western Australia on which the business was carried out. He alleges that he sold the pharmacy business by a written sale agreement dated 13 March 2013 to Chee Koon Hee, the first respondent. He further alleges that after the agreement was signed the name C K Hee Pty Ltd, the seventh respondent, as trustee for the C K Hee Family Trust, was added as a purchaser without his knowledge or consent.

3    He also alleges that also on 13 March 2013 he sold the land to a “Purchaser” but that after the contract of sale was signed it was “further counter-signed by a number of other signatories identified only by illegible signatories with no names or addresses or contact details”. He alleges that apart from Devesh Sheth, the second respondent, there were other “shareholders” not disclosed to him prior to signing both agreements and that none of the other “potential purchasers could be identified by word of mouth or paper”.

4    Mr Chee Koon Hee in his affidavit sworn on 1 June 2013 in support of the application filed on his behalf and that of Devesh Sheth and C K Hee Pty Ltd annexed a copy of the contract for the sale of the land between [Mr Nyoni] as seller and the seventh respondent as trustee for the C K Hee Family Trust, S C Tan Pty Ltd (ACN 092 946 015) as trustee for the S C Tan Family Trust and Kruti Pty Ltd (ACN 117 836 183) as trustee for the D R Sheth Family Trust, as the Buyers (the land contract). He deposes that the contract was executed by the respective directors of the purchaser companies on 12 March 2013 and by [Mr Nyoni] on 13 March 2013. He also annexed a copy of the sale contract for the pharmacy business (the business contract). This copy shows both himself and C K Hee Pty Ltd, as trustee for the C K Hee Family Trust, as purchasers.

5    However, the copy of the business contract annexed to [Mr Nyoni]’s affidavit, sworn 9 August 2013, discloses only Chee Koon Hee as purchaser but is otherwise identical to the copy annexed by Chee Koon Hee.

6    I infer that the name of the company, C K Hee Pty Ltd as trustee for the C K Family Trust, was added to the copy held by Chee Koon Hee after the business contract was executed.

7    However, on 18 April 2013, two documents entitled “VARIATION OF SETTLEMENT DATE” were executed varying the settlement date under each of the land contract and the business contract, to 22 May 2013. The document relating to the land contract was executed by C K Hee Pty Ltd as trustee for the C K Hee Family Trust, S C Tan Pty Ltd as trustee for the S C Tan Family Trust and Kruti Pty Ltd as trustee for the D R Sheth Family Trust. The document was signed by the respective directors of those companies, Mr Chee Koon Hee, Mr S C Tan and Mr Devesh Sheth.

8    The document in relation to the business contract was signed by [Mr Nyoni] and by Chee Koon Hee as sole director and sole secretary of C K Hee Pty Ltd as trustee for the C K Hee Family Trust. That company in that capacity was disclosed in clear terms as the buyer. [Mr Nyoni], when asked about this said from the bar table that he must have overlooked this fact as to the identity of the nominated purchaser before he signed this document.

9    The alteration of the name of the purchaser in the business contract and the “illegible signatories” on the land contract are each alleged by [Mr Nyoni] to constitute misleading and deceptive conduct and a breach of those contracts. However, he made it clear in oral submissions that his overarching complaint was that the real and undisclosed purchaser of both the land and the pharmacy business was the Shire of Kellerberrin, the eleventh respondent. This allegation finds no support in the evidence beyond the assertion of [Mr Nyoni]. The contracts are not to that effect.

10    [Mr Nyoni] alleges that he relied upon the fact that he was selling the business to Chee Koon Hee and the land to the three companies. So much may be accepted. However, he also signed the variation of settlement date document disclosing the purchaser of the business as C K Hee Pty Ltd as trustee for the C K Hee Family Trust. This evidences an acknowledgment on his part that the business contract was to proceed to settlement with that company as purchaser. The “illegible signatories” on the land contract are, as Chee Koon Hee has deposed, the directors of each of the purchasing companies.

(emphasis added)

5    It is also helpful to set out, as the primary judge did (at [27]-[28]), the relief sought by Mr Nyoni in the final form of the statement of claim examined by the primary judge:

1.    Respondents 1, 2, 3, 4, 5, 6, 7 and 11

1.1    Conract of sale between Emson Nyoni (Seller) and Cee Koon Heen (buyer) dated 13 March 2013 be set aside for breach of Australian Consumer Law (ACL) ss 18 and 22 and Trade Practices Act 1974 s 52.

2.    In the premises pleaded in paragraphs pleads with the Court to either revoke to suspend the Notice of the Delegate dated 24 April 2013 for the Schedule 8 Poisons licence

3.    

4.    B. In the premises pleaded in paragraphs that the Court void or rescind sale agreements dated 13 March 2013. And that respondents be denied any specific performance remedy.

5.    

6.    C. Court orders Alleasing from maliciously prosecuting applicant by allowing a fair trial under the ACL requirements in the Federal Court under Unconscienable conduct and halt any proceedings by Alleasing until a fair trial, which has never happened.

7.    

8.    D Damages for conspiracy

9.    

10.    E Damages for past, present and future earnings.

11.    F. Costs

12.    

13.    G. Any relief the Honourable Court thinks fit.

14.    

(Transcribed without amendment)

…

A.    Sale Agreement for the pjarmacy business and associated buikding at 92 Massingham Street dated 13 March 2013 between Emson Nyoni and Chee Koon Hee an be set aside with orders prohibiting specific performance pursuant to s. 18 of the ACL 2010.

B.    Notice dated 24 April from Delegate of CEO be revoked pursuant to s. 18 of the ACL 2010 .

C.    All proceedings against Applicant by Alleasing Pty Ltd be be set aside or in the alternative be subjected to a proper hearing under s. 18 and s. 22 of the ACL 2010.

D.    A declaration that in the premises pleaded in paragraphs 6, 13, 17, 18, AND 19 above, or any one of them, Mr Peczka, and, or, Mr Friend, and, or, and or Mr Mr Raymond Griffithswas guilty of the tort of misfeasance in public office.

E.    Damages for misfeasance in public office in the premises pleaded in paragraphs 6, 13, 17, 18, 19 and 35 or any one of them.

F.    Damages pursuant to sections s. 18 of the ACL 2010 and or of the Trade Practices Act and, or, sections 77 and 79 of the FTA against the Shire for the contravention pleaded in paragraps6, 16, 17, 18, 19, 22, 28, 30, 32, 33, 35, 36, 39 and 40.above, or, any one of them.

G.    Damages pursuant to sections232, 233, 234, 235, 237, 242, and 245 of the ACL 2010 and sections 82 and 97 of the TPA, and, or, sections 77 and 79 of the FTA agains Mr Hee, Mr Seth, Mr Mr Peczka, Mr Friend, Mr Griffiths, Dr Van Ballegooyen, Alleasing Pty Ltd, CEO of Health WA, Ms Murphy, Shire of Kellerberrin and Ms Beech , Mr , Mr Friend, <r Peczka, and, the contraventions pleaded in paragraph s 6, 16, 17, 18, 19, 22, 28, 30, 32, 33, 35 and 36 , 39 and 40or anyone of them above.

H.    Damages against Respondents One, Two, Three, Four, Five, Six, Seven, Eight, Nine, Ten, Eleven and Twelve for the torts pleaded in paragraphs 6, 16, 17, 18, 19, 22, 28, 30, 32, 33, 35 and 36, 39 and 40 above, or any one of them.

I.    Damages for Defamation undersection 18 of the ACL 2010 or section 52 of the TPA against the Respondents One, Two, Three, Four, Five, Six, Seven, Eight, Nine, Ten Eleven and Twelve n Pragraphs 6, 16, 17, 18, 19, 22, 28, 30, 32, 33, 35, 36, 39 and 40 or any one of them.

J.    Damages for conspiracy against Respondents Ine, Two, Three, Four, Five, Six, Seven, Eight, Nine, Ten, Eleven and Yweve the premises pleaded in paragraphs 6, 16, 17, 18, 19, 22, 28, 30, 32, 33, 35, 36, 39 and 40 above, or anyone of them.

K.    Damages for loss of current and future earnings in the premises pleaded in paragraphs 6, 16, 17, 18, 19, 22, 28, 30, 32, 33, 35, 36, 39 and 40 above, or anyone of them.

L.    Interest.

M.    Any other relief as this Honourable Court thinks fit.

N.    Costs.

(Transcribed without amendment)

THE JUDGMENT

6    As to claims based under s 18 or s 22 of the Australian Consumer Law in Sch 2 of the Competition and Consumer Act 2010 (Cth) (the ACL), the primary judge concluded that the evidence did not support Mr Nyoni’s case that he was misled as he alleges at the time of entering into the Sales Contracts thereby inducing him to enter into the contracts. His Honour held that the evidence was to the contrary (at [35]). His Honour noted that the pleading was sadly deficient and had no reasonable prospects of success and should be dismissed.

7    The primary judge noted that the submissions of the first, second and seventh respondents was that the Court had no jurisdiction to hear a claim for relief based on defamation or, alternatively, common law breach of contract. As far as defamation was concerned, his Honour held that the cause of action in defamation could not stand alone after the dismissal of the other causes of action. I infer that the reasoning here was that there was no common substratum of facts which might keep alive the common law elements after dismissing the federal claims. The factual basis for the claims were entirely different.

8    The primary judge described as best he could the substance of the allegations of conspiracy. He noted (at [39]):

39    The substance of [Mr Nyoni]’s allegations of conspiracy are to an extent interwoven with allegations of misleading and deceptive conduct, although the pleading is somewhat disjointed, seems to be that:

(a)    The eleventh respondent, in collusion with the first, second and seventh respondents, provided support for the purchase of [Mr Nyoni]’s pharmacy.

(b)    The eleventh respondent is the true purchaser of the land and business, and is using the first and seventh respondents “as a corporate cover”.

(c)    The third respondent assisted the first and second respondents in establishing pharmacies in Bruce Rock and Narembeen.

(d)    The second, third, fourth and fifth respondents had made several attempts to obtain the pharmacy business using a variety of methods, all of which were intended to facilitate a rival pharmacy or pharmacist.

(e)    The third, fourth and fifth respondents used the eleventh respondent, in an attempt to establish a rival pharmacy, to build a rival pharmacist’s residence in Kellerberrin, as well as to purchase a “pharmacy premises” a couple of doors down from [Mr Nyoni]’s pharmacy.

(f)    The third respondent facilitated and/or aided Mr Bateman trespassing on [Mr Nyoni]’s pharmacy.

(g)    The third respondent fabricated charges with Mr Bateman during the trespass.

(h)    The third, fourth and fifth respondents met with the second respondent at the Shire office and Shire resource centre on several occasions to discuss the Kellerberrin pharmacy.

(i)    The eleventh respondent sponsored a rival pharmacist, the second respondent, to replace [Mr Nyoni] as the pharmacist in Kellerberrin.

(j)    The fifth respondent, in collusion with the first, second, third, fourth, sixth, seventh, eighth, ninth, tenth, eleventh and twelfth respondents, conspired, defamed and made numerous false allegations to Pharmacy Regulatory Authorities against [Mr Nyoni].

(k)    The sixth respondent advised one of [Mr Nyoni]’s customers to lodge a complaint against [Mr Nyoni].

(l)    The fifth respondent contacted the Pharmaceutical Council of Western Australia (the Council) to lodge a complaint.

(m)    The fifth respondent caused the tenth respondent to trespass on [Mr Nyoni]’s property when he was in hospital in Perth. It is alleged that during this visit the tenth respondent “violently turned documents, papers and other things upside down in search of unexplained targets”. It is further alleged that the fifth respondent further caused the tenth respondent to re-enter the pharmacy, “following another search or hunt”.

(n)    The fifth respondent caused the tenth respondent to destroy [Mr Nyoni] to secure the Kellerberrin pharmacy away from [Mr Nyoni].

(o)    The sixth respondent encouraged patients to use other pharmacies away from Kellerberrin.

(p)    The eighth respondent conspired with the eleventh and/or the third, fourth or fifth respondents to harm [Mr Nyoni] and his business.

(q)    The eleventh respondent and/or the third, fourth and fifth respondents worked with Kodak in 2004-2007 before engaging the eighth respondent.

(r)    The fifth and eleventh respondents and/or the third and fourth respondents colluded with the eighth respondent to create a non-existent debt with the intention of haring [Mr Nyoni] and his business. The eighth respondent then went on to claim $28,000 “in a secretive default judgment hidden in a local Court in NSW without Applicant’s knowledge”.

(s)    The tenth respondent seized a number of documents and expired medication after “rummaging and turning the pharmacy upside down using a police warrant”. The tenth respondent then commenced proceedings in the Magistrates Court. [Mr Nyoni] alleges that a “brief of prosecution” which had been prepared by the State Solicitor’s Office contained false allegations, false photographs and distorted evidence. It is alleged that this brief was used by the tenth respondent to revoke [Mr Nyoni]s Schedule 8 licence. It is alleged that the fifth and eleventh respondents “motivated” and “sponsored” the “unwarranted” visits of the tenth respondent to [Mr Nyoni]’s pharmacy.

(t)    The twelfth respondent, in collusion with the first, third, fourth, fifth, sixth and eleventh respondents and other unidentified respondents, incited patients to file complaints against [Mr Nyoni] with the Council.

(u)    The twelfth respondent, in collusion with the third, fourth, fifth, sixth and eleventh respondents, incited a Department of Health Inspector, Mr Bateman, to file a complaint against [Mr Nyoni].

(v)    The twelfth respondent, in collusion with the third, fourth, fifth, sixth and eleventh respondents, requested Medicare Australia to file a strong complaint against the pharmacy’s stock levels and opening hours.

9    His Honour reached the conclusion that the conspiracy pleading had no reasonable prospects of success as a matter of law, as the conspiracy was one predominantly motivated by self-interest on the part of those respondents rather than the predominant purpose of injuring Mr Nyoni. The essence of Mr Nyoni’s complaint appeared to be that the activity was designed to force a sale of the pharmacy business ‘by hook or crook’. But it is not alleged in the pleading, nor was there any evidentiary basis for inferring, that the business was sold at an undervalue or in circumstances where Mr Nyoni did not enter into the contract willingly. Mr Nyoni conceded in oral argument that he entered into the contracts willingly. The primary judge concluded that Mr Nyoni’s real complaint was that the real purchaser under the contracts was, in fact, the Shire of Kellerberrin (Shire). There being no support for that suggestion either, his Honour rejected any conspiracy claim.

10    Mr Nyoni had sought relief against the third, fourth and fifth respondents in connection with the contracts for sale. The primary judge held no cause of action arose against those respondents as none of them was a party to the contract. Equally, there was no cause of action available on the poisons licence complaint. The gravamen of the complaints of conspiracy in relation to the third, fourth and fifth respondents were set out by the primary judge in detail (at [51]). They were as follows:

51    Even if that were not so, the applicant’s cause of action in conspiracy has no reasonable prospects of success with regard to the “facts” pleaded by the applicant. This is because the facts alleged by the applicant as linking the third, fourth and fifth respondents to the actions of other parties, said to comprise the conspiracy to injure the applicant, on their face, do not give rise to a plausible, let alone reasonable, inference of an agreement between the respondents to injure the applicant. The relevant allegations of conspiracy pleaded are as follows:

(a)    in relation to the actions of the Department of Health officers, the links relied on by the applicant to demonstrate an agreement to injure comprise the following:

(i)    the third respondent “facilitated” and/or aided Mr Bateman trespassing on the applicant’s pharmacy;

(ii)    the third respondent fabricated charges with Mr Bateman during the “trespass”;

(iii)    the fifth respondent “caused” the tenth respondent to “trespass” on the pharmacy on a number of occasions;

(iv)    the fifth respondent caused the tenth respondent “to destroy [the] applicant to secure [the] Kellerberrin Pharmacy away from [the] applicant”; and

(v)    that the fifth [and eleventh] respondents had “motivated” and “sponsored” the “unwarranted” visits of the tenth respondent to the applicant’s pharmacy.

(vi)    The fifth respondent, in collusion with the first, second, third, fourth, sixth, seventh, eighth, ninth, tenth, eleventh and twelfth respondents, conspired, defamed and made numerous false allegations to Pharmacy Regulatory Authorities against the applicant.

(vii)    The twelfth respondent, in collusion with the first, third, fourth, fifth, sixth and eleventh respondents and other unidentified respondents, incited patients to file complaints against the applicant with the Council.

(viii)    The twelfth respondent, in collusion with the third, fourth, fifth, sixth and eleventh respondents, incited a Department of Health Inspector, Mr Bateman, to file a complaint against the applicant.

(ix)    The twelfth respondent, in collusion with the third, fourth, fifth, sixth and eleventh respondents, requested Medicare Australia to file a strong complaint against the pharmacy’s stock levels and opening hours.

(b)    In relation to the judgment debt obtained against the applicant by the eighth respondent:

(i)    the fifth [and eleventh] and/or the third and fourth respondents colluded with the eighth respondent to create a non-existent debt; and

(ii)    [the eleventh respondent] and/or the third, fourth and fifth respondents worked with Kodak in 2004-2007 before engaging the eighth respondent.

(c)    In relation to the purchase of the pharmacy business:

(i)    the third respondent assisted the first and second respondents in establishing pharmacies in Bruce Rock and Narembeen;

(ii)    the second, third, fourth and fifth respondents had made several attempts to obtain the pharmacy business using a variety of methods, all of which were intended to facilitate a rival pharmacy; and

(iii)    the third, fourth and fifth respondents met with the second respondent at the Shire office and Shire resource centre on several occasions to discuss the Kellerberrin pharmacy.

11    His Honour was satisfied that none of the claims had any reasonable prospects of success. His Honour characterised them as ‘hopeless’ (at [53]).

12    In relation to the ninth, tenth and twelfth respondents, his Honour was satisfied that there was no sustainable claim under the Poisons Act 1964 (WA) (Poisons Act) nor was there any sustainable claim against the ninth respondent who is the Chief Executive Officer (CEO) of Health WA. There were no facts pleaded capable of establishing any connection between the CEO and the commercial transactions of the private individuals. There was no way in which they could be described as being sufficiently ‘attached’ to a ‘federal claim’ in the proceeding.

13    It was clear that the claim against the ninth respondent did not fall within the original jurisdiction of the Court or with any accrued jurisdiction.

14    In relation to the tenth and twelfth respondents, there was simply no claim against them except that Mr Nyoni sought damages for conspiracy against unidentified parties and damages for past, present and future earnings in respect of an unidentified cause of action.

15    In relation to the proposed conspiracy against the tenth respondent, his Honour set out the relevant pleaded facts from [32] of the statement of claim as follows (at [76]) (transcribed without amendment):

32.    Respondent TEN Jillian Murphy

32.1.    In late 2010 Aplicant commenced procedings against a delegate of the Department of Health and Chief Pharmacist Murray Patterson along with Robert Bateman, the then Seniour investigator from the Department.

32.2.    Among other reasons, that proceeding had its origins in the turmoil created by the Delegate and his unprofessional behaviour towards Applicant during a number of visits to Applicant’s pharmacy from 2007 till 2010, and trespass on 2 October 2007.

32.3.    After the trespass the Delegate at the Department of Health accepted my request that the next audits be conducted with a pharmacist witness present to avoid the devastating miscounting that had led to frivolous allegations being made to the Department by Robert Bateman after submitted erroneous counts of Schedule 8 drugs to the Department.

32.4.    Mr Rose Atkinson conducted a few such subsequent audits which were acceptable.

32.5.    Beyond that a pharmacist from Merredin Pharmacy did the joint audits for about 3 months, followed by a pharmacist from Northarm Pharmacy for another 3 months and yet another pharmacist from the Wheatbelt for another 3 months. All joint reports were acceptable.

32.6.    When Robert Bateman left he was replaced by Jillian Murphy Respondent Ten).

32.7.    When Jillian Murphy. Introduced hrtself on her first violent, unwitnessed entry at Applicant’s pharmacy premiseson 17 August 2011, she declared that Robert was always right and promised to avenge the suit against Robert. Very unprofessional and caricature appearance at first site, it took me a while to understand their story, as Applicant believed that he could be dealing with real drug dealers, and at the end it turned out they were simply trespassing, just like Robert.

32.8.    After 3 hours they left without any comment, and I never heard from them ever again until esarly Jsnusry 2012 when Respondent Ten again violently entered

32.9.    On that visit while Respondent Ten secretly in a corner without involving Applicant, as the harmacy was quite busy that morning, there was no witness in the form of a pharmacist as previously agreed.

32.10.    On or around the first week of January 2012 Respondent Five, made nother trespass into Aplicant’s [harmacy depriving Applicant of his freedom

32.11.    Respondent Ten seized a number of documents and expired medication after rummaging and turning the pharmacy upside down using a police warrant that a crime was about to be committed.

32.12.    Applicant, staff and customers were humiliated and distressed by the 3 hour ordeal.

32.13.    As pleaded in pragraphs 20.5.6 to 20,5.9, Respondent Ten made further raids on Applicant’s pharmacy iwhile Applicant was away and invited other authorities from the Board and removed a number of documents, including certificates of registration without any explanation.

32.14.    Respondent Ten then dropped a Magistrate Court Noticharging Applicant with 6 offences which Applicant immediately disputed.

32.15.    ABrief of rosecution prepared by the State Solicitors Pffice contained false allegations, false photographs , distorted evidence all sworn as fact.

32.16.    That brief was used by Respondent Ten who also appeared as witness to convict Applicant in early January 2013 and the covictionwas referred to by the Delegate of the Department of Health in giving Notice to revoke Applicant’s Schedule 8 lpermit.

16    Insofar as the twelfth respondent was concerned, the pleading was set out in [40] of the statement of claim in these terms as recited by his Honour (at [77]) (transcribed without amendment):

40.    Respondent TWELVE Theresa Beech

40.1.    At all material times Respoindent Twelve is the senior Nurse at Kellerberrin Hospital who claims to be Manager of the Hospital. For leadership and medical authority the substantive person is Dr Van Ballegooyen, who also solely runs the Kellerberrin Shire Surgery, just adjacent to the aforenamed Hospital. It is in her capacity as a Seniour Nurse that Respondent Twelve has indulged, for several years in destroying Aplicant’s business, reputation and customer loyalty.

40.1.1.    On 27 November 2007 respondent 12, in collusion with other respondents 3 incited a Dorothy Jennings to file a complaint against Applicant with the then Pharmaceutical Council of Western Australia.

40.1.2.    On 3 January 2008, respondent 1, in collusion with other respondents incited a Steve Britton to file a complaint against Applicant with the then Pharmaceutical Council of Western Australia.

40.1.3.    On 6 November 2008, respondent 1 in collusion with other respondents incited a Christie White to file a complaint against t Applicant with the Pharmaceutical Council of Western Australia.

40.1.4.    On 2 September 2009 respondent 12 , in collusion with respondents 3, 4, 5 6 and 11 incited a Michael Upton to file a complaint against me with the Pharmaceutical Council of Western Australia.

40.1.5.    On 4 June 2009 respondent 12 in collusion with respondents 3, 4, 5, 6 and 11 incited a Department of Health inspector, Robert Bateman, Department of Health to file a complaint, against t me, on behalf of a Rinaldo Paron with the Pharmaceutical Council of Western Australia..

40.1.6.    On November 2009 Mr respondent 12 in collusion with respondents 3, 4, 5, 6 and 11 requested Medicare Australia to file a strong complaint against Applicant's pharmacy stock levels and opening hours.

40.1.7.    After failing to succeed in all these attempts and many others, respondent 12 continued to use the same imputations described above, using her position in the Hospital and a good relationship with some elements in the Department of Health. And respondents 3, 4, 5, 6, 10 and 11 , including respondents 1 and 2 approximately end of 20-12 till present. Perhaps the reason I have not heard from responden 12 is that she has reverted to more covet means under the cover and protection of people like respondent 10.

40.1.8.    Respondent 12 has since 2008 exploited the starter pack resgime to carry out full disoensing of medicines in her Hospital. Poisons regulations across the country normally permit a hospital to carry a very minimal amount of urgent medication, such as antibiotics, painkillers ets to enable nursing staff, on the rescommendation of a Dr to commence these medications after hours or public holidays using starter packs. But respondent 12, has cunningly worked out claims that the hospital is in need of much mare, and with the support of some elements in the Department of Health, bow runs a full dispensary with proper wholesale

40.1.9.    Actions of Respoindent Twelve were constituted a concerted action by a combination of two or more persons to accomplish an unlawful purpose or a lawful purpose by criminal or unlawful means, causing damage to the Applicant.

17    The primary judge was unable to identify an arguable conspiracy claim nor an arguable claim that those respondents had misled or deceived Mr Nyoni. In relation to the latter, no material facts had been pleaded capable of establishing that complaint. His Honour held that the failure of Mr Nyoni to plead a reasonable cause of action despite an opportunity to amend in that case demonstrated the fact that no such cause of action existed. His Honour noted that none of the various affidavits relied upon by Mr Nyoni contained admissible evidence capable of supporting any contrary conclusion.

18    As to the sixth respondent, his Honour cited the pleaded complaints as follows (at [82]) (transcribed without amendment):

22.    Respondent SIX Andrew Van Ballegooyen

22.1.    Since the advent of brand substitution of pharmaceutical benfits in pharmacy right across Australia, around 2004 or earlier, Dr Andrew Van Ballegooyen, the Shire GP and only one in Kellerberrin, has used his clinical consultations to disparage Applicant by telling his patients that Appllicant dispenses “wrong” medicines, resulting in an exodus of vital customers.

22.1.3.    On numerous occasions between 2005 and today, Dr Van Ballegooyen has continued to encourage patients to go to ther pharmacies away from Kellerberrin, for original brands or as for “correct” medicines or “correct” treatment.

22.1.3.1.     In 2006 a Mr Kevan Reed, then a customer at Applicant’s pharmacy was advised by Dr Van Ballegooyen to make a complaint to the then pharmacy registering authority, Pharmaceutical Council of Western Australia alleging that Applicant had dispensed a wrong blood pressure tablet to him.

22.1. 3.2.     Neither Mr Reed nor Dr Van Ballegooyen ever identified the tablet in question to Applicant or investigators, except assert that “When I looked at the tablet, it had a different colour or appearance from what I used to get.” It is pertinent to note here that sometimes original brands and generic brands may look different, but the essential ingredients for which they are legally supplied is identical.

22.1.3.2.     This has been repeated with innumerable number of customers, details of which can be made available prior to trial.

22.1.4.    Lost prescriptions

22.1.5.     Long absence from GP practice at Kellerberrin without a locum

22.1.6.    Diversion of prescriptions away from my pharmacy

22.1.7.     Abuse of the medical starter pack system to undermine my pharmacy

23.    Each of the representations made by Dr Van Ballegooyen in the preceding paragraphs was intended to inflict harm on Applicant and his business and it did

23.1.    Before the difficulties pleaded in paragraphs 22 commenced, Aplicant’s pharmacy enjoyed an unfettered and exponential growth in turnover and prescription vol;ume from 2003 to 2006/7. Following the concerted efforts by respondent Six and other respondents, Applicant’s business has been declining as a direct result of the role of Respondent Six, together with a number of other respondents described elsewhere in this Statement of Claim.

24.    Each of the statements by Dr Van Ballegooyen were not based on the truth and particularly:

24.1.    Conveyed a defamatory meaning to the community and Health professions at large.

24.2.    Lowered the Applicant in the estimation of others

24.3.    Exposed the Applicant to hatred, contempt or ridicule

24.4.    Incites hatred, contempt or ridicule, on grounds of, but not limited to, race

24.5.    Cause Applicant to be shunned or avoided

24.6.    Is defamatory on the facts, false and true innuendo, with reference to the Hypothetical referee.

25.    Statement made with intentional malice or lack of good faith through deliberate misrepresentation, where Dr Van Ballegooyen was negligent and or reckless.

26.    The publication of the representations in the premises pleaded was conduct which was misleading and or deceptive or likely to mislead or deceive.

27.    Further, the conduct pleaded in those previous paragraphs was in the course of trade and commerce.

19    Again, his Honour noted that any relief set out in [A]-[C] of the originating application could never concern the sixth respondent. Insofar as any suggested conspiracy was concerned, none of the pleadings alleged any specific conduct relevant to any cause of action against him. There was, broadly speaking, a complaint of defamation though the consequent allegation was one of conspiracy. As no conspiracy cause of action was sustainable, his Honour dismissed the claim against the sixth respondent.

20    As to the eleventh respondent, the Shire, the facts pleaded were broadly to the effect that it had colluded with the first, second and seventh respondents for the purpose of the Shire purchasing Mr Nyoni’s pharmacy using the first and second respondents ‘as a cover’. It was claimed that the Shire established a rival pharmacy, employed the sixth respondent with the directions to ‘harm’ Mr Nyoni and colluded with the eighth respondent to create a ‘non-existent debt’ which was then enforced against Mr Nyoni and caused unauthorised power cuts and incited action by other governmental authorities to ‘harm’ him. The same conspiracy allegations as against the third, fourth and fifth respondents were asserted against the Shire and his Honour’s conclusions were the same.

21    His Honour concluded that Mr Nyoni had been unable, despite numerous opportunities, to raise an arguable claim against the Shire. The conspiracy claims had no reasonable prospects of success. His Honour concluded they should be dismissed.

22    In relation to the eighth respondent (Alleasing), Alleasing had obtained a default judgment against Mr Nyoni in the Local Court in New South Wales in consequence of which a Property (Seizure and Sale) order (PSSO) had been issued against Mr Nyoni in favour of Alleasing. There has been various litigation under which Mr Nyoni has applied to suspend enforcement of the PSSO. The applications have been unsuccessful. However, his Honour noted that the application in these proceedings was filed only four days after the dismissal of the application to set aside the default judgment against Mr Nyoni. The relief sought was to restrain Alleasing from ‘maliciously prosecuting’ Mr Nyoni. There were complaints apparently suggesting unconscionable conduct. The primary judge understood that Mr Nyoni was seeking, in substance, to invoke the jurisdiction of the Federal Court under the ACL to seek a stay of enforcement properly obtained through the Local Court of New South Wales and the Magistrates Court of Western Australia. There were appeal processes available to Mr Nyoni. They had not been pursued. The primary judge concluded that the relief sought was an abuse of process.

23    The primary judge dealt with an indemnity costs application (at [110]-[119]) and concluded that indemnity costs should be payable for the following reasons (at [115]-[119]):

115    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.

116    Most of these features that justified an indemnity costs order in Cirillo, are present here.

117    The applicant has put the respondents to the expense of defending claims which are either hopeless or devoid of any reasonable prospects of success. The circumstances are such that, if properly advised, it is very likely that these proceedings would not have been instituted or continued.

118    The applicant should pay the respondents’ costs, on an indemnity basis, to be taxed if not agreed.

119    The costs of the first, second and seventh respondents in relation to the applicant’s interlocutory application for injunctive relief dated 22 May 2013, for essentially the same reasons, should also be paid on an indemnity basis.

APPEAL GROUNDS

24    In this proceeding, Mr Nyoni sought to appeal immediately from the summary judgment without first obtaining leave as he was required to do. Ultimately orders were made by Siopis J permitting the appeal notice filed by Mr Nyoni to be treated as his application for leave to appeal: Nyoni v Chee Koon Hee [2013] FCA 1120.

25    The grounds of appeal relied upon in support of the application for leave to appeal are the same against all the respondents and they are in the following terms:

1.1    Made a finding of fact or facts on an important issue which could not be supported by the evidence.

1.2    Applied an incorrect principle of law.

1.3    Evidence was wrongly admitted such as hearsay evidence and several unverifiable documents and or concocted or fabricated Contract of Sale and or Variation of Sale.

1.4    Wrongly failed to include evidence obtained and established on other decisions on similar proceedings.

1.5    Made a wrong decision about a procedural matter by refusing applicant an adjournment to properly amend originating application and his decision prevented applicant being able to present all the relevant evidence and that resulted in a substantial miscarriage of justice.

1.6    Erred in both fact and n (sic-in) law in accepting evidence from respondents that the conspiracy alleged by the applicant is one predominantly motivated by self-interest on the part of these respondents rather than the predominant purpose of injuring the applicant.

1.7    Costs ordered were without any lawful basis or foundation.

INJUNCTION

26    In addition, Mr Nyoni seeks an injunction in the following terms against the first, second and seventh respondents (transcribed without amendment):

1.    To avoid a gross miscarriage of justice and irreparable harm to applicant an injunction be imposed that Respondents One, Two and Seven seize(sic-cease) forthwith attempts to enforce specific performance or any other similar remedy, in this Court or in any other Court pending the outcome of proceedings WAD382/2013 and WAD316/2010.

2.    In an effort to conserve valuable time and resources and rationality that respondents One, Two and Seven allow applicant, by withdrawing their Summary Judgment application, which is already sufficiently covered under WAD382/2013 and WAD316/2010 and encompasses most elements in the controversy and other essential respondents, hardly covered in the misconceived and misleading allegations and proposals made out in CIV2468/2013 at the Supreme Court of Western Australia to divert attention from the substantive proceedings.

3.    Respondents One, Two and Seven remove a caveat they placed on my Certificate of Title for my business premises at 92 Massingham Street, Kellerberrin WA 6410 as it is unwarranted. and prejudice applicant while proceedings WAD382/2013 and WAD316/2010 are still being deliberated.

4.    At the conclusion of proceedings WAD382/2013 and WAD316/2010, the question of costs to either party will become clearly apparent, so respondents One, Two and Seven should refrain from bullying applicant about yet to be determined costs of proceedings which may flow one way or the other, in the future.

27    There were three detailed affidavits from Mr Nyoni sworn on 7 November 2013 (this affidavit is filed in support of the application for extension of time to file a notice of appeal), 11 November 2013 (this affidavit is filed in support of the application for interlocutory injunction) and a further affidavit sworn on 28 November 2013. In the further affidavit Mr Nyoni explains that the application for leave to appeal was not filed within time explaining that he had understood the dismissal application as being a final order thus proceeding with the notice to appeal. This, of course, is a reasonably understandable error for a lay person to make. The balance of that affidavit sets out the nature of the complaints against the various respondents.

CONSIDERATION

Application for extension of time and application for leave to appeal

28    Apart from some generalised allegations of complaint against the primary judge’s application of the law, particularly in the context of s 31A of the Federal Court of Australia Act 1976 (Cth) (FCA), there is nothing in the affidavit in support of the grounds for extension of time explaining the delay in filing the application for an extension. There is also nothing specific to support an assertion of demonstrated error on the part of the primary judge. What the affidavit deals with in essence, albeit in an argumentative and inadmissible format, are the original complaints against the various respondents. Of course, those complaints can go no wider than the pleaded case, such that one is driven back essentially to the question of whether there is determining any basis on the ultimate form of the statement of claim on which the claim should have survived.

29    Given the absence of any information going specifically to the question of the reasons for delay, I propose treating the application for an extension of time together with the application for leave to appeal.

30    I accept the submissions for the various respondents that while a degree of latitude must be afforded to an unrepresented litigant, such status does not confer a license to disregard entirely the procedural requirements imposed by the Federal Court Rules 2011 (Cth) (FCR) or the substantive law. In determining the extent of latitude which is appropriate, it is clear that on a number of occasions recommendations were made to Mr Nyoni that he should obtain legal representation and yet he has declined to do so. As a consequence the litigation has resulted and will continue to result in substantial costs being incurred by the respondents as well as significant court resources being diverted in circumstances where proper legal advice could have avoided both of those outcomes.

31    Insofar as the extension of time is concerned, Mr Nyoni has the onus of persuading the Court that in all the circumstances of the case an extension should be granted: r 35.14 FCR. A discretion to extend time is solely for the purpose of enabling justice to be done between the parties. It should only be granted in circumstances where it is demonstrated that strict compliance will work an injustice upon the applicant for an extension of time. A key consideration in that regard is the prospects an applicant will have in succeeding on an appeal.

32    There is an unexplained short delay in relation to Mr Nyoni’s application to extend time. Even putting that to one side, as I do, the application to extend time must fail, as the application for leave to appeal must fail if Mr Nyoni fails to identify any arguable error on the part of the primary judge. There is, in my view, such a failure as all that Mr Nyoni relies upon in the present instance are bare assertions of error which will clearly be insufficient: Ninan v Valuer-General of Western Australia (No 2) [2013] FCA 1180 per Jacobson J (at [16]-[18]).

33    Insofar as the substantive application for leave to appeal is concerned, it is well established that leave to appeal from an interlocutory judgment will be granted where:

(a)    in all the circumstances the decision is attended by sufficient doubt to warrant its being reconsidered by the Full Court; and

(b)    substantial injustice would result if leave were refused, supposing the decision to be wrong: Niemann v Electronic Industries Ltd [1978] VR 431.

34    This is a cumulative test and generally each limb must be made out: Rawson Finances Pty Ltd v Deputy Commissioner of Taxation (2010) 81 ATR 36 (at 38). Nevertheless, it is not an exhaustive test to be applied to all cases, as that would be contrary to the unfettered discretion conferred on the Court by s 24(1A) FCA: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 (at 398-400).

35    Insofar as eleventh respondent is concerned, the primary judge concluded that at its highest the claim for conspiracy via the eleventh respondent’s agents, the third, fourth and fifth respondents, was one carried out for personal gain, not one with the intention of harming Mr Nyoni. This, accordingly, failed to satisfy an essential element of the cause of action. There was no allegation that Mr Nyoni had suffered any loss or damage as a result of the alleged conspiracy and no evidence in support of such an allegation. I accept the submission for the eleventh respondent that there is no admissible evidence or submission addressing why the primary judge was incorrect in making these findings. It follows that there is no prospect of the appeal succeeding and there can be no prejudice in an extension of time within which to seek leave to appeal, being refused. The eleventh respondent seeks costs but not an indemnity basis.

36    Insofar as the first, third, fourth and fifth respondents are concerned, the claims against them at first instance were the setting aside of the contract of sale between Mr Nyoni as seller and the first respondent as buyer on the grounds of breach of s 18 and s 22 of the ACL. It was held that there was no cause of action identifiable. Mr Nyoni also claimed against those respondents the ‘revocation or suspension’ of the ‘Notice to Delegate dated 24 April 2013 for the Schedule 8 of the Poisons Licence’. The primary judge held no cause of action could be identified in seeking as against those respondents the revocation or suspension of the Notices as none of them had any role whatsoever to play in the administration of the Poisons Act, nor was it alleged that they did so.

37    In addition, orders were sought preventing the eighth respondent from maliciously prosecuting Mr Nyoni insofar as enforcing the New South Wales proceedings were concerned. That ground was rejected and no error is demonstrated in the rejection.

38    There were also damages sought for conspiracy against all of the respondents. In this regard, the primary judge reviewed the allegations and the law and concluded that the essential element of conspiracy was there be an agreement made for the predominant purpose of injuring another, rather than an agreement motivated by self-interest, and that this purpose was not met. In any event, the facts alleged by Mr Nyoni as linking the respondents to actions of other parties gave rise to no plausible, let alone reasonable, inference of any agreement between the respondents to injure Mr Nyoni. A general claim for damages for past, present and future earnings was unsupported by any cause of action.

39    Insofar as these conclusions are concerned, none of the grounds of appeal do anything more than raise bare assertion. The conclusionary assertions are void of content. In particular, it is self-evident that there is no identification of any ‘fact’ or ‘important issue’ which was unsupported by the evidence. There was no ‘incorrect principle of law’ articulated. Neither error of fact nor error of law in failing to identify the conspiracy is identified. Similarly, in relation to malicious falsehood, although this was not in any event part of the case for Mr Nyoni at first instance, there was no identification of the ‘hearsay evidence’ or the ‘several unverified documents’ admitted by the primary judge and there is no identification of any evidence Mr Nyoni asserts ought to have been admitted that was not. As to lack of opportunity to amend, the Court had considered a substituted statement of claim and affidavit filed on the day of the hearing and treated the revised claim as being that in respect of which the s 31A FCA application was to apply.

40    The assertion that the primary judge ordered costs without a lawful basis has no merit when these grounds fall away. Clearly costs which had been sought by the respondents below followed the event.

41    Insofar as the ninth, tenth and twelfth respondents are concerned, the same observations apply. Each of the grounds of appeal is devoid of any meaningful content. There are only minor changes of wording in respect of some of the respondents. Given that complaints against the State government department and personnel are wholly unrelated to the completely unsuccessful complaints of misleading and deceptive conduct concerning the business sales and the sales of land, there is, in any event, no jurisdiction in the Court to consider the complaints against the State department and personnel. There is no common substratum of facts and no accrued jurisdiction. There are no prospects of the grounds of appeal against these respondents succeeding.

42    In relation to the sixth respondent, it is difficult to identify a cause of action in any event. The affidavit in support simply repeats allegations previously made and in relation to the sixth respondents, lists the same grounds of appeal raised against other respondents. The same criticisms must be made of these grounds of appeal. There are no prospects of success on appeal.

43    As to the eighth respondent, again, there is no material before the Court upon which any favourable consideration of the leave application could be made. The same conclusions must be expressed about the proposed grounds of appeal.

44    Even giving the most charitable construction to the grounds of appeal and looking beyond technical inadequacies, it is impossible to identify any particular ground of error on the part of the primary judge which would be likely to constitute sufficient doubt to warrant reconsideration by the Full Court. Nor, in all the circumstances is it apparent that substantial injustice would be occasioned if the application for an extension of time were refused.

Injunction

45    Mr Nyoni also seeks injunctive relief to restrain the first, second and seventh respondents from proceeding with their claim for specific performance in the Supreme Court of Western Australia proceedings. In addition, Mr Nyoni seeks an order that those respondents withdraw their application for summary judgment in the Supreme Court proceedings, and an order that those respondents remove a caveat registered against his land in Kellerberrin in order that those respondents refrain from ‘bullying him about yet to be determined costs of proceedings’.

46    In support of his application for an interlocutory injunction, Mr Nyoni points to a sales agreement signed between himself and the first respondent as buyer for the pharmacy business, and then subsequently, the home premises. He says that not long after the execution, he obtained legal advice to the effect that the purported sale had been performed by the Shire using the first respondent as a ‘front man’ with the intention of displacing him from other proceedings (WAD 316 of 2010). ‘This has followed 10 years of the Shire denigrating my business’ and reputation he said. Although the additional respondents were not in the original proceedings, he is nevertheless seeking an injunction to prevent ‘irreparable damage’ to him.

47    The sales concerned, as indicated, are first, a contract for sale of land in Kellerberrin made by Mr Nyoni as seller and the seventh respondent as trustee for a family trust and two other entities as trustees for two other family trusts, and second, a sale agreement for sale of the Kellerberrin pharmacy by Mr Nyoni to the first respondent and the seventh respondent as trustee for a family trust. Two of those entities are not parties to the Federal Court proceedings. A caveat which was filed pertains to one of those contracts. Detailed background to the dispute is set out in an affidavit for the first respondent filed in the Supreme Court proceedings.

48    Rule 8.01 FCR requires a person wanting to ‘start a proceeding’ in the Federal Court’s original jurisdiction to file an originating application. When a proceeding has already started, under r 17.01 FCR it is necessary to file an interlocutory application. There is no practical avenue for the interlocutory application to be sought within the appellate jurisdiction of this Court which I am currently exercising. Putting that technical detail to one side, there is a real question as to whether the Court has jurisdiction or power to make an order which would have the indirect effect of purporting to prevent another court from proceeding to hear and determine an action that has been commenced in that court. Even if the Court did have such jurisdiction or power, it is clear that the Supreme Court is the appropriate forum to determine the application Mr Nyoni seeks to pursue or perhaps a stay application. The point stressed by Mr Nyoni was that the problem with the contractual proceedings ensuing in the Supreme Court is that they reflect only one small part of a much bigger dispute involving all of the respondents in this Court. The difficulty with that argument is that there is no remaining dispute with the other respondents ensuing in this Court as the claims are to be dismissed and no appeal is to be permitted. In any event, if there are matters which should be raised in response to specific performance applications in the Supreme Court, no doubt Mr Nyoni can seek to do so. Those proceedings are not to be heard until next February and he has ample time to present whatever material he seeks to advance in response to the applications concerned.

49    Even if this were not so, Mr Nyoni has not identified any relevant facts or law that could support the type of exceptional relief that he has sought, namely, preventing other parties from seeking to enforce against him their claims for specific performance of the contracts in the Supreme Court proceedings. Further, the affidavit evidence, such as it is, is almost wholly an inadmissible and argumentative assertion.

50    I decline to grant the injunctive relief sought.

Indemnity costs

51    As acknowledged by r 40.02(a) FCR, parties 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. To do so would warrant some identification of some special or unusual feature of the case. Indemnity costs are not intended to punish a party for persisting with a case that ultimately fails. Nor are they awarded as a means of deterring litigants from putting forward arguments that might be attended by uncertainty. They do, however, serve a purpose of compensating a party fully for costs incurred as a normal costs order could not be expected to do so, 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: Hamod v New South Wales (2002) 188 ALR 659 (at [20]). Mr Nyoni brought these applications in circumstances where, had he taken legal advice, he should have been informed he had no prospects of success.

52    Nevertheless, while it is clear that costs must follow the event, I am reluctant to order indemnity costs against Mr Nyoni, bearing in mind that although he has been warned and should have been conscious of that possibility, the recommendation to obtain legal advice was given in the context of the primary proceedings rather than in relation to this application. Further, as a lay person, Mr Nyoni may have been under the impression and, indeed, was under the impression, at least until informed otherwise by Siopis J, that he had an automatic right of appeal from a judgment dismissing the proceeding. While Mr Nyoni has put the respondents to expenditure in circumstances where this may possibly not have occurred had he been legally advised not to pursue an application, he has not unduly delayed the conduct of the applications for leave. In this situation, I am reluctant to award indemnity costs against a litigant in person where the unreasonableness of the course pursued is driven by ignorance and misconception. There is no doubt that Mr Nyoni genuinely believes that he is entitled to relief in respect of his perceived grievances. Although the matter is finely balanced, in all the circumstances I propose that costs should follow the event on a party and party basis.

Associate:

Dated:    18 February 2014