FEDERAL COURT OF AUSTRALIA

Nyoni v Shire of Kellerberrin (No 7) [2016] FCA 135

ORDERS

THE COURT ORDERS THAT:

1.    The written interlocutory application for a stay of paragraph 3 of the orders of Siopis J made on 23 November 2015 is dismissed.

2.    The appellant pay the first, second, third and fourth respondents’ costs of the written interlocutory application.

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

REASONS FOR JUDGMENT

MORTIMER J:

1    Mr Nyoni has appealed from the orders and decision of Siopis J made on 23 November 2015, in which his Honour dismissed Mr Nyoni’s claims made under s 52 of the Trade Practices Act 1974 (Cth), as well as his claims made in tort in relation to misfeasance in public office. Siopis J upheld Mr Nyoni’s claim in trespass against Mr Mitchell, the fifth respondent, and awarded damages in his favour in the sum of $12,000, comprising general damages of $8,000 and aggravated damages of $4,000. His Honour otherwise dismissed Mr Nyoni’s claims of trespass against the second to fourth respondents.

2    The appeal has been referred to me for case management.

3    The first respondent appeared by counsel, as did the second to fourth respondents. The fifth respondent has filed a submitting notice.

4    Mr Nyoni has applied by interlocutory applications, both written and oral, for a number of orders.

5    His written interlocutory application sought a stay of paragraph 3 of Siopis J’s orders. By that paragraph, his Honour ordered Mr Nyoni to pay the costs of the first to fourth respondents.

6    On the basis of material submitted and without opposition by the respondents, I gave Mr Nyoni leave to make oral applications for three other orders he had foreshadowed in his submissions ahead of the case management hearing.

7    Mr Nyoni sought leave to raise a new cause of action against the first respondent in relation to what he alleged to be the alteration by the first respondent of the boundaries of the land on which Mr Nyoni had built his house in Kellerberrin. That application was clearly outside the scope of matters which can be raised on appeal and I dismissed it.

8    Mr Nyoni also made an application to “to set aside frivolous and vexatious evidentiary material presented by Respondents”. When this was explored with him, Mr Nyoni made it clear this related to complaints about the evidence at trial admitted by Siopis J. Mr Nyoni accepted he could raise this as a ground of appeal, and confirmed that at least in part it was what he intended to be covered by existing ground 3 in his Notice of Appeal. Accordingly, that application was also dismissed, on the basis that Mr Nyoni would give further particulars in his ground of appeal about the evidence he contends the trial judge should have excluded.

9    The third oral application made by Mr Nyoni concerned the proposed joinder of two individuals – Mr Robert Bateman and Ms Theresa Beech, both of whom had roles in the events which led to Mr Nyoni’s claims. I dismissed this application. Mr Bateman and Ms Beech were amongst the 26 individuals who, in January 2014, Mr Nyoni sought to add as respondents to his claim at trial. Siopis J granted Mr Nyoni leave to join Mr Mitchell, who became the fifth respondent (and against whom Mr Nyoni succeeded), but otherwise dismissed the application: see Nyoni v Shire of Kellerberrin (No 5) [2014] FCA 204.

10    Further, I note that in other proceedings in this Court, Mr Nyoni had made claims against Ms Beech (amongst other people) in relation to her alleged role in the demise of his pharmacy business in Kellerberrin. These proceedings brought by Mr Nyoni concerned a contract for the sale and purchase of his pharmacy business in Kellerberrin. Part of his case, it seems, was that the purchasing parties were not the “real” purchasers, and the “real” purchaser was Mr Nyoni’s foe, the Shire of Kellerberrin. Gilmour J dismissed those claims (including those against Ms Beech and the conspiracy allegation concerning the Shire being the true purchaser of the property) as without any reasonable prospects of success see: Nyoni v Chee Koon Hee (No 4) [2013] FCA 948. His Honour said (at [41]):

The applicant’s cause of action in conspiracy has no reasonable prospects of success as a matter of law. The substance of the applicant's claim is that these respondents have acted in concert to destroy the applicant's business in order to further their business interests either in competing to supply pharmaceuticals in Kellerberrin, or to acquire the pharmacy. The “conspiracy” asserted 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. As the applicant pleads at [13] of his statement of claim, it was to promote a sale of the applicant’s business “by hook or crook”. The applicant, however, has not alleged that he sold the land or business at an under-value or at a value lowered because of this asserted conduct. Nor did he tender any evidence of loss or damage allegedly suffered under any head of claim. Indeed, he conceded in oral argument that he entered into those contracts willingly. As I mentioned, his real complaint is that the real purchaser under those contracts is the Shire of Kellerberrin.

11    Gilmour J observed that Mr Nyoni had put the respondents to the expense of defending claims which were either hopeless or devoid of any reasonable prospects of success, and ordered indemnity costs against Mr Nyoni.

12    Mr Nyoni sought leave to appeal from Gilmour J’s decision, which was denied: see Nyoni v Chee Koon Hee (No 2) [2014] FCA 83. Mr Nyoni has had his opportunities to take action against Ms Beech and Mr Bateman. There was in any event no possible utility in the circumstances of this matter in joining to an appeal persons who were not parties to the proceedings below.

STAY ON THE COSTS ORDER OF SIOPIS J

13    The final application was the application for a stay of the costs orders made by Siopis J. Mr Nyoni’s principal submission was that unless the costs order was stayed, the appeal would be rendered nugatory. He developed this by submitting that the respondents had already stopped him from working and ruined his business; they had “dissipated” funds held in the WA Supreme Court by making applications for their costs to be paid out of those funds and were intent on “wielding a bankruptcy weapon” against him, in circumstances where others Mr Nyoni contends are connected to the respondents (including Ms Beech) have already filed a bankruptcy petition against him.

14    He contended his circumstances were similar to those in Wu v Li [2014] FCA 297, where Foster J granted a stay on costs ordered pending an appeal. Mr Nyoni also contended it was not appropriate for the Court to scrutinise closely his grounds of appeal (in terms of assessing their prospects) since this would usurp the function of the appellate court.

15    Where the appellant is a corporation, a stay of execution may properly be granted over orders such as costs orders which may result in the winding up of the corporate appellant and so render that appellant’s appeal nugatory: Kalifair Pty Limited v Digi-Tech (Australia) Ltd [2002] NSWCA 383; 55 NSWLR 737 at [16]. Those principles are not directly applicable here, and there is no evidence before the Court which demonstrates the connection asserted by Mr Nyoni between the enforcement of the costs order and likely bankruptcy proceedings against him by the respondents. There is no evidence at all about his financial circumstances.

16    The Court must determine whether Mr Nyoni has demonstrated a reason, or an appropriate case, to warrant the exercise of a discretion in his favour, rather than require him to demonstrate “special circumstances” justifying a stay: Philip Morris (Australia) Limited v Nixon [1999] FCA 1281 at [17]; Powerflex Services Pty Ltd v Data Access Corporation (1996) 67 FCR 65 at 66.

17    Mr Nyoni has not satisfied me that a stay would be appropriate. The first to fourth respondents succeeded at the trial and are entitled to the benefit of the judgment in their favour, and to the presumption that Siopis J’s judgment is correct: Powerflex at 66.

18    This case is not similar to Wu, where (as the second to fourth respondent submitted) the judgment creditor was also the petitioning party in the appellant’s bankruptcy proceeding. On the evidence before me, the bankruptcy petition brought by Ms Beech and Ms Murphy relates to judgments in their favour in respect of separate proceedings, albeit that there may be some underlying factual connection with the current appeal. I certainly accept that is how Mr Nyoni perceives the situation. However, where a successful respondent seeks to enforce a costs order by way of a creditor’s petition in bankruptcy, both the purpose and effect of rendering an appeal nugatory is apparent.

19    This is not a case where I am satisfied the first to fourth respondents are intent on pursuing the bankruptcy of Mr Nyoni to attempt to frustrate his right of appeal. There is no such evidence before me. I accept Mr Nyoni may draw such connections but I see no objective basis in the evidence for them. Nor, as I say, do I have any evidence that Mr Nyoni’s financial circumstances are such that it is only if the costs orders are stayed that he will be able to pursue his appeal. It seems to me the bankruptcy proceedings against him by Ms Beech and Ms Murphy may pose an independent hurdle, but that is a matter which has yet to become clear.

20    This proceeding was commenced in 2010. Mr Nyoni has also had proceedings in the Supreme Court of Western Australia concerning the same subject matter: Hee v Nyoni [2014] WASC 44 and Nyoni v Hee [2014] WASCA 84. It is apparent from other cases to which I have referred that Mr Nyoni has been litigating about the demise of his pharmacy business in Kellerberrin over a substantial period of time. Substantial costs orders, including indemnity costs orders, have been made against him in a number of proceedings. There is nothing in the evidence before me to suggest that the presence of a further costs order, and the prospect that it may be enforced, will of itself have any particular chilling or practical effect on the exercise by Mr Nyoni of his right of appeal.

21    The merits of the existing grounds of appeal have not weighed particularly heavily one way or the other in my reaching this conclusion. Mr Nyoni is correct to submit that in exercising the stay power, a court must be cautious not to treat the application as if it is the appeal itself and should avoid anything but an impressionistic assessment of the merits of the grounds of appeal. Suffice to say that there are some grounds of appeal which appear to me to be expressed in regular and acceptable terms, and do not appear fanciful or vexatious. Some raise questions of law which are tolerably clear concerning joint tortfeasors, and aspects of the operation and application of s 52 of the Trade Practices Act. Others raise tolerably clear challenges to factual findings by his Honour. I accept the respondents’ submissions that some of the grounds require Mr Nyoni successfully to challenge findings of fact, which would appear on his Honour’s reasons to be a difficult task, however, those are matters for the appeal. In my opinion the main matter tending against the application is the failure of Mr Nyoni to satisfy me that the grant of a stay would be appropriate in the particular circumstances in which he finds himself on this appeal, bearing in mind the respondents’ recognised general entitlement to the benefit of the orders of the trial judge.

22    Mr Nyoni’s interlocutory applications must be dismissed. The costs of the respondents will be costs in the appeal.

Associate:

Dated:    1 March 2016

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