FEDERAL COURT OF AUSTRALIA

Nyoni v Shire of Kellerberrin (No 8) [2016] FCA 245

ORDERS

THE COURT ORDERS THAT:

1.    The appellant has leave to file, and to rely upon, an amended notice of appeal in the form provided to the parties with these reasons for judgment.

2.    The appellant is not permitted to rely upon any other form of a notice of appeal without further leave of the Court.

3.    The appellant is to confer in person with Registrar Trott of the WA Registry, for the purpose of Registrar Trott explaining to the appellant the steps he must now take in order to prepare the appeal for hearing on the basis of this notice of appeal and in accordance with these orders.

4.    The conference referred to in paragraph 3 of these orders is to occur at a time convenient to Registrar Trott, and suitable for the appellant, but no later than 12 April 2016.

5.    The respondents to file and serve any application for orders that the appellant provide security for the costs of the appeal, including any affidavits and submissions in support, by no later than 4:00pm on 17 March 2016.

6.    The appellant to file and serve file and serve any submissions and affidavits in response to the security for costs applications by no later than 4:00pm on 14 April 2016.

7.    Any interlocutory application for security for costs will be determined on the papers without an oral hearing.

8.    The appeal be listed for hearing before a Full Court in Perth on a date to be fixed during the Full Court and Appellate Sitting period 1 to 23 August 2016.

9.    The hearing be listed for an estimate of one day.

10.    By 4:00pm on 10 May 2016, the appellant must submit drafts of the index to Part A and the index to Part B of the Appeal Book for the Registrar’s approval. The draft indexes must be agreed by all parties and the front page of each draft index must state that it is agreed by all parties.

11.    Not later than 4.00pm 20 business days before the hearing of the appeal, the appellant must:

(a)    file four copies; and

(b)    serve on the appellant an appropriate number of copies

of Parts A and B of the Appeal Book, otherwise in accordance with Practice Note APP2.

12.    Not later than 4:00pm 5 business days before the hearing of the appeal, the appellant must:

(a)    file four copies; and

(b)    serve on the appellant an appropriate number of copies

of Part C of the Appeal Book, otherwise in accordance with Practice Note APP2.

13.    On or before 6 May 2016 the Respondents are to file and serve any notice of objection to competency, notice of contention or any cross appeal.

14.    In accordance with Practice Note APP2, not later than 4.00pm 20 business days before the hearing of the appeal, the appellant must file and serve on the respondents his outline of submissions and a chronology of the relevant events.

15.    In accordance with Practice Note APP2, not later than 4.00pm 15 business days before the hearing of the appeal, the respondents must file and serve on the appellant their outline of submissions, a chronology of the relevant events and a list of materials they require to be included in Part C of the Appeal Book.

16.    In accordance with Practice Note APP2, not later than 4.00pm 10 business days before the hearing of the appeal, the appellant file and serve on the respondents any submissions in reply.

17.    Outlines of submissions are not to exceed 10 pages in length, including any annexures, and are to be easily legible using a font size of at least 12 points and one and a half line spacing throughout, including in any footnotes and annexures. Italics or underlining must be used for legislation and case citations and boldface or italics may be used for occasional emphasis.

18.    The respondents’ costs of the case management hearing on 10 March 2016 are reserved.

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

REASONS FOR JUDGMENT

MORTIMER J:

1    On 19 February 2016 and after a case management hearing with the parties, I made orders in a number of applications relating to Mr Nyoni’s appeal 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. My reasons can be found at Nyoni v Shire of Kellerberrin (No 7) [2016] FCA 135.

2    Paragraph 5 of those orders required Mr Nyoni to file and serve an amended notice of appeal in accordance with the matters I had discussed with him at the case management hearing. In summary, those matters were that the present notice of appeal was uninformative in relation to three grounds of appeal (grounds 3, 4 and 12) and Mr Nyoni was required to particularise those grounds.

3    In their original form, those grounds were:

3.    The leaned Judge gave too much weight to unsubstantiated hearsay evidence by the respondents where all other evidence before the Court proved otherwise and in so doing erred in law and fact in not finding malicious falsehood by the respondents.

4.    Damages awarded for the impugned conduct by Peter Mitchell are not reflective of the gross violations found by the Court and the Judge erred in failing to award applicant appropriate damages.

…

12.    The learned Judge erred in assessing causation and damages by not assessing all the relevant factors involved in valuating pharmacy performance on evidence before the Court.

4    I discussed with Mr Nyoni what was involved in particularising the grounds.

5    I also ruled that ground 1 of the notice of appeal was to be removed on the basis that it was too general, and not in its current form a proper ground of appeal. Ground 1 read as follows:

1.    The trial judge Siopis J. erred in law and fact in not finding that each of the claims against each of the respondents one to five were breaches under s.52 of the Trade Practices Act 1974.

6    I held that the matters Mr Nyoni explained that ground 1 covered were dealt with in other existing grounds, especially grounds 8-10, which stated:

8.    The trial Judge erred in not finding that the Shire engaged in misleading and deceptive conduct by publishing the minutes of the meeting of the Shire Council of 16 February 2010, which contained false representations and that the Shire’s conduct contravened s 52 of the Trade Practices Act 1974 (Cth) (Trade Practices Act) and s s10 of the Fair Trading Act 1987 (WA) (Fair Trading Act).

9.    The learned Judge erred in not finding that in publishing the impugned minutes, the Shire engaged in conduct which was “in trade or commerce”

10.    The learned Judge erred in not finding that the representations made by the Shire in the published minutes were false.

7    I gave a direction to Mr Nyoni that he was to file and serve an amended notice of appeal in accordance with the matters discussed at the case management hearing. My chambers then also informed Mr Nyoni that Registrar Trott at the Perth Registry was aware of his appeal and that Registrar Trott would discuss his amended notice of appeal with him before it was accepted for filing.

8    On 4 March 2016 Mr Nyoni sought an extension of time in which to file his amended notice of appeal. I gave him a short extension, to 8 March 2016.

9    At 4:02pm on 8 March 2016, Mr Nyoni sought to file by electronic lodgement an amended notice of appeal. It was not marked up, and therefore the amendments could not be readily discerned. Mr Nyoni had not, contrary to my direction, consulted with Registrar Trott in advance of filing this document. At a further case management hearing on 10 March 2016, he maintained he had attempted to do so a few hours before he lodged the document on 8 March 2016. If that is correct, such an attempt was a wholly unsatisfactory attempt at compliance with my direction.

10    The document was not accepted for filing but referred to me by Registrar Trott because of its obvious noncompliance with my orders. That document was not served on the respondents.

11    On 9 March 2016, and a day ahead of the further case management hearing, a further document was lodged by Mr Nyoni. It differs substantially from the document lodged on 8 March 2016. However, this version was served by Mr Nyoni on the respondents. Despite the further blatant noncompliance by Mr Nyoni with my orders, I allowed him to proceed at the case management hearing on the basis of this second document, given that was the one he had served on the respondents and apparently now wished to rely upon. That document had also not been accepted for filing. I shall refer to it as the “proposed notice of appeal”.

12    The proposed notice of appeal now runs to 23 pages, whereas the original notice of appeal was four pages, not including the schedule of parties. There are 17 grounds of appeal listed, only a few of which are in the same form as those in the original notice of appeal. In other words, although I gave Mr Nyoni leave to amend three grounds, he has amended most of them.

13    I gave Mr Nyoni an opportunity to make submissions about the proposed notice of appeal. The respondents also made short submissions. I indicated to Mr Nyoni that although I accept that he had attempted in places to comply with what I had required of him about particularisation, there were many parts of the proposed notice of appeal which went far beyond what was appropriate in a notice of appeal, and were more in the nature of submissions. I informed Mr Nyoni that he would be able to put some of that material into his submissions on the appeal but it could not all remain in the notice of appeal itself.

14    I also made it clear that there were parts of the proposed notice of appeal which were scandalous, and which I would not permit to remain in the notice of appeal. I emphasised that in all court documents he was, as a party, required to be respectful in his language and that documents which contained rude and scandalous material would not be tolerated and would be rejected. He gave an undertaking to the Court that he would in future use respectful language in all documents he filed on the appeal. An affidavit which he had filed since the case management hearing on 19 February 2016 and to which the respondents drew my attention was clearly scandalous and I directed it be removed from the Court’s file.

15    Turning now to each of the grounds in the proposed notice of appeal, contrary to Mr Nyoni’s submissions, in my opinion there are three grounds which raise entirely new matters and are completely outside the leave granted to him by me on 1 March 2016. Those are the grounds on pages 19-21 (both of which are numbered “15”) and the ground on page 12, which is numbered “3”. The first two did not even purport to be amendments. The third did, but when the original ground is considered, it is apparent that what has been inserted is entirely new, outside the five causes of action identified by Siopis J at [19] of his Honour’s reasons for judgment, and well outside the original grounds of appeal. All three of those new grounds will be struck out from the proposed notice of appeal.

16    Ground 1 in the proposed notice of appeal is very lengthy. Mr Nyoni has attempted to deal with my direction that he particularise the evidence which he submits the trial judge gave too much weight to or relied upon erroneously. The substance of this ground will remain, in terms of the witnesses Mr Nyoni has identified as giving evidence the trial judge should not have accepted. However, the ground will be in the form I have accepted as appropriate and which will be provided to the parties with these reasons for judgment, together with a marked up version of the document showing what has been struck out. What I have done is preserved the words used by Mr Nyoni which I consider capture his complaints, and deleted the parts which are scandalous, constitute submissions or which I consider are otherwise inappropriate for a notice of appeal.

17    The remainder of the grounds in the proposed notice of appeal are tolerably clear, and sufficient to articulate the complaints made by Mr Nyoni. In relation to two grounds of appeal it was necessary to insert a description of Mr Nyoni’s real complaint. Those descriptions appear in square brackets in the notice of appeal. I put these matters to Mr Nyoni at hearing and he agreed these words represented his complaint about the trial judge’s approach.

18    The respondents quite rightly pressed for an opportunity to put an application for security for costs, and I made orders accordingly. All parties were content for that application, if lodged, to be dealt with on the papers. I gave Mr Nyoni some additional time to respond to any such application after he told me about the other matters he was required to attend to in relation to bankruptcy proceedings against him in the Federal Circuit Court of Australia.

19    I have taken a liberal approach to Mr Nyoni’s non compliance in order to ensure, in accordance with s 37M of the Federal Court of Australia Act 1976 (Cth) that the real issues in dispute on the appeal are identified and dealt with in a way which is a reasonable and efficient use of the Court’s resources. Mr Nyoni will not be permitted to abuse his appellate rights by continually adding new grounds of appeal, and departing from the leave he has been given. I have given him considerable latitude on two occasions and I consider he now has a fair opportunity to put the matters he initially identified as his complaints about the decision of Siopis J before an appellate court. The matter will be listed for hearing in the August sittings and it is critical that all parties can now prepare for that appeal on the basis of the grounds identified in the notice of appeal that is the subject of this ruling.

Associate:

Dated:    16 March 2016

SCHEDULE OF PARTIES