FEDERAL COURT OF AUSTRALIA

Nyoni v Shire of Kellerberrin (No 5) [2014] FCA 204

THE COURT ORDERS THAT:

1.    The applicant’s interlocutory application for joinder of parties dated 13 January 2014 is dismissed, save and except that the proposed 20th respondent, Mr Peter Mitchell, be joined as a party to these proceedings.

2.    The applicant pay each of the respondent’s costs of the interlocutory application on an indemnity basis to be paid forthwith.

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

REASONS FOR JUDGMENT

1    This is an interlocutory application dated 13 January 2014 by the applicant, Mr Nyoni, to join an additional 26 respondents to this proceeding, and for a number of orders as set out in that application.

2    It is important to observe that this proceeding, in respect of which there are four respondents, being the Shire of Kellerberrin and three of its officers, has been on foot since 28 October 2010. The progress of the proceeding to trial has been substantially impeded by Mr Nyoni’s attempts to plead a comprehensible statement of claim. This is notwithstanding that, during the course of the proceeding after one of the interlocutory applications for summary dismissal of his claim (Nyoni v Shire of Kellerberrin [2011] FCA 1299), the Court appointed pro bono counsel to assist and represent Mr Nyoni in the conduct of the proceeding. However, after pro bono counsel had settled and filed an amended statement of claim, Mr Nyoni dispensed with the services of pro bono counsel and then sought to reintroduce in his pleaded document a number of allegations and claims which I had already struck out on the grounds that they were scandalous, embarrassing or disclosed no reasonable cause of action.

3    Nevertheless, on the basis that some of Mr Nyoni’s complaints appeared to give rise to triable matters, I dispensed with the process of pleadings and proceeded on the basis that the trial would be conducted on the basis of a statement of issues (Nyoni v Shire of Kellerberrin (No 2) [2012] FCA 1477). As the submissions of the respondents correctly contend, the settling of the issues for trial has been a lengthy process. However, that task has now been accomplished and the trial dates have been set for the middle of July 2014. Accordingly, the matter is now only about four and a half months away from trial.

4    The affidavit evidence discloses, and it is obvious, that the persons who are the respondents in this case have had to, and will have to, endure the stress of about four years of litigation. The stress associated with long-running litigation is a relevant factor in the exercise of case management principles. Further, by reason of the unconventional manner by which this litigation has been conducted, the respondents have been required to incur a considerable amount of costs.

5    Clearly, if the Court was to permit Mr Nyoni to join all of the 26 proposed new respondents to this proceeding, the trial dates for July 2014 would have to be abandoned. Secondly, the time for the proceeding to come to trial would be prolonged very substantially beyond the already lengthy period of almost four years, to a period which would be wholly unacceptable. Thirdly, the conduct of the proceeding with 30 respondents would become intolerably unwieldy. Accordingly, on case management grounds alone, I would dismiss Mr Nyoni’s application for joinder of the additional respondents, save in relation to the joinder of Mr Peter Mitchell. Mr Mitchell’s conduct in disconnecting the electricity supply from the applicant’s pharmacy premises, is already the subject of complaint in this proceeding and he is, therefore, likely to be a key witness in the proceeding. Further, Mr Mitchell’s joinder to the proceeding can be accommodated within the existing timeframe leading up to trial. It is, therefore, appropriate that he be joined. Mr Graham submitted that Mr Mitchell’s joinder may prompt third party proceedings which may threaten the existing trial dates. However, in that eventuality, I will make case management orders to accommodate that eventuality whilst preserving the trial dates.

6    Accordingly, save in relation to Mr Mitchell, I dismiss Mr Nyoni’s application for joinder, for case management reasons.

7    However, there are other obstacles which stand in the way of Mr Nyoni pursuing the claims he wishes to make against the parties he seeks to join, which arise from previous litigation involving Mr Nyoni. I refer to this litigation.

8    In 2013, Mr Nyoni commenced proceeding, WAD 154 of 2013, in this Court in which he brought claims against many of the persons whom he now seeks to join to these proceedings. In September 2013, only a matter of a few months ago, Gilmour J dismissed Mr Nyoni’s claims against the respondents to that application. On 18 February 2014, leave to appeal against Gilmour J’s decision was refused.

9    Further, in 2010, Mr Nyoni commenced proceeding, CIV 261 of 2010, in the Supreme Court of Western Australia alleging trespass and other tortious conduct against two of the persons now sought to be joined as respondents to this proceeding, Mr Murray Patterson and Mr Robert Bateman. The defendants succeeded before the Master in having Mr Nyoni’s claim summarily dismissed. The Court of Appeal of Western Australia partially upheld Mr Nyoni’s appeal and permitted him to proceed with his claim against Mr Bateman. That proceeding is still on foot in the Supreme Court. Also, in 2010, Alleasing Pty Ltd, the proposed tenth respondent, obtained default judgment for a debt in the sum of about $28,000 against Mr Nyoni in New South Wales.

10    In addition, in 2012, Mr Nyoni was convicted in the Magistrates Court of Western Australia of six offences for non-compliance with the Poisons Regulations 1965 (WA). Mr Nyoni’s defence was that the evidence against him was false. Mr Nyoni’s appeal against his conviction and sentence was heard by Heenan J of the Supreme Court of Western Australia in 2013. Mr Nyoni’s conviction was upheld, but the sentence was reduced.

11    Mr Nyoni was also the defendant to an action brought in the Supreme Court of Western Australia by Mr Chee Koon Hee, Mr Devesh Sheth’s related company and CK Hee Pty Ltd for specific performance of the contract entered into with Mr Nyoni to purchase his pharmacy. On 21 February 2014, Acting Master Gething granted specific performance by way of summary judgment against Mr Nyoni. Among the rejected defences which Mr Nyoni sought to raise in that proceeding was that the plaintiffs had engaged in misleading or deceptive conduct. This was the same allegation that Mr Nyoni made in WAD 154 of 2013, and which Gilmour J summarily dismissed.

12    Further, on 24 November 2013, restrictions were placed on Mr Nyoni’s pharmaceutical dispensing licence in relation to dispensing Schedule 8 drugs. Mr Nyoni has sought to join a number of persons as respondents to this proceeding for the purpose of having those restrictions set aside, and attacking his conviction in the Magistrates Court.

13    The bulk of the claims which Mr Nyoni would propose to make by the joinder of the proposed respondents to this proceeding, are claims which he has previously made unsuccessfully in other proceedings, or by which he otherwise seeks to impugn decisions made against him in proceedings to which he is or was a party. Accordingly, in addition to case management considerations, there are also substantial reasons founded upon abuse of process by way of relitigation and collateral challenge, for refusing Mr Nyoni’s application for joinder.

14    Mr Nyoni also sought other orders in his interlocutory application. In essence, the orders sought are dependent upon Mr Nyoni having been successful in his joinder application. However, I will address each of the orders sought.

15    Order 2 seeks to stay the execution of a number of costs orders in different proceedings in a number of different courts until the termination of this proceeding. In light of my decision to refuse the joinder of the new parties to bring the claims proposed by Mr Nyoni, the basis upon which Mr Nyoni relies to seek these orders fall away. The same reasoning also applies to order 3 which is also an application to stay the execution of a costs order. In any event, stay orders of the nature sought should be sought in the appropriate proceeding.

16    Order 4 is an application for an injunction to restrain Mr Chee Koon Hee, Mr Devesh Sheth and CK Hee Pty Ltd from acting on any orders of the Supreme Court of Western Australia pending the final determination of this proceeding. In light of my decision to refuse the joinder of the new parties, there is no basis upon which to make this order. But, in any event, Mr Nyoni’s claim is a collateral challenge to the orders which were made by Acting Master Gething. Accordingly, I will not make order 4.

17    Order 5 seeks an order that the contract for the sale of Mr Nyoni’s pharmacy be set aside. That is not an interlocutory order and it will not be made.

18    Order 6 and order 7 seek to enjoin the imposition of the restrictions on Mr Nyoni’s pharmaceutical licence. As a consequence of my refusing the application for the joinder of those parties, there is no foundation for making any such orders. In any event, these are matters for State jurisdiction.

19    Orders 8, 9 and 10 are claims for damages and are not interlocutory orders. They will not be made. Order 11 seeks an order setting aside a caveat. That is a matter which also falls within State jurisdiction and, in any event, could not be made whilst Acting Master Gething’s judgment stands.

20    Therefore, I refuse to make any of the orders which are set out in Mr Nyoni’s interlocutory application, save for the joinder of Mr Mitchell.

Associate:

Dated:    11 March 2014