FEDERAL COURT OF AUSTRALIA

Nyoni v Beadle in her Capacity as Trustee of the Bankrupt Estate of Emson Clever Nyoni (No 2) [2019] FCA 1375

ORDERS

THE COURT ORDERS THAT:

1.    The appellants' interlocutory application dated 30 July 2019 is dismissed.

2.    The appellants file and serve any amended notice of appeal by 15 August 2019.

3.    The appellants provide the respondent with a draft of the Part A index and the Part B index for the appeal books by 22 August 2019.

4.    The respondent provide any comments to the appellants as to the draft of the Part A index and the Part B index for the appeal books by 27 August 2019.

5.    Any application to the Registrar to settle the Part A index and the Part B index for the appeal books is to be made by the appellants by 3 September 2019.

6.    Within 14 days after the Registrar approves the draft indexes, the appellants file and serve the complete Part A with each document indexed and ordered behind a unique tab and a copy of the Part B Index.

7.    The appellants file and serve an outline of submissions on the appeal, and a chronology not later than 20 business days before the hearing of the appeal.

8.    The respondent file and serve any outline of submissions on the appeal, and a chronology not later than 15 business days before the hearing of the appeal.

9.    The appellants file and serve any outline of submissions in reply not later than 10 business days before the hearing of the appeal.

10.    The appellants file and serve Part C of the appeal book not later than 5 business days before the hearing of the appeal.

11.    The appellants file and serve a list of authorities and a list of any legislation to which they intend to refer not later than 5 business days before the hearing of the appeal.

12.    The respondent file and serve a list of authorities and a list of any legislation to which she intends to refer not later than 4 business days before the hearing of the appeal.

13.    The appeal is listed for hearing on Thursday 31 October 2019 at 10:15am.

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

REASONS FOR JUDGMENT

JACKSON J:

1    The background to this matter appears in Nyoni v Beadle in her Capacity as Trustee of the Bankrupt Estate of Emson Clever Nyoni [2019] FCA 1116. The appellants filed an interlocutory application seeking an order that the appeal be heard by a Full Court. The application was supported by an affidavit of Mr Nyoni sworn 30 July 2019. I dealt with the application at a case management hearing held on 31 July 2019. The following reasons have been edited from the transcript of that hearing.

2    With the leave of the court, Mr Nyoni attended the hearing by telephone. His affidavit set out the grounds of the application. I invited him to say anything else he wished to say to me in favour of granting the application. He said that the points raised in the application and the affidavit were all he wished to say, and he did not think there was anything he could add to what was already in those documents.

3    On 23 July 2019 the Chief Justice made a determination under s 25(1AA) of the Federal Court of Australia Act 1976 (Cth) that it was appropriate for the appellate jurisdiction of this court in relation to this appeal to be exercised by a single judge. In the absence of special circumstances it would not be appropriate for another judge to revisit that determination. But in any event I see no basis to invite the Chief Justice to change the determination.

4    That is because Mr Nyoni's affidavit disclosed no good reason why the appeal should be heard by a Full Court. The reason put forward in the affidavit was that there had been a failure by single judges of this court to facilitate the just resolution of various disputes involving Mr Nyoni according to law. Mr Nyoni made reference to the requirements of s 37M of the Federal Court of Australia Act.

5    In support of that contention Mr Nyoni annexed to his affidavit a number of orders of single judges of this court, in other proceedings. He provided no context for those orders which might permit me to conclude that those orders do, indeed, fail to achieve the purposes of s 37M. But more fundamentally, that is not a determination for me to make. In the absence of extraordinary circumstances, and there was no suggestion of extraordinary circumstances here, it would not be appropriate for me to seek to go behind orders that have been made in other proceedings, in order to work out whether or not those orders achieved the purposes of s 37M or whether they were otherwise appropriate.

6    Further, even if (entirely hypothetically) I did conclude that the orders were inconsistent with the objectives of s 37M, none of the judges to whom Mr Nyoni referred (some of whom are now retired) are going to hear this appeal. As a result, the submission essentially resolved to the proposition that whoever hears the appeal as a single judge is likely not to achieve the overarching purpose in s 37M. There is simply no basis for making the submission in advance that any judge of this court is not going to resolve the matter according to law and achieve a just resolution of the dispute.

7    After giving the above reasons to Mr Nyoni, Mrs Nyoni made further oral submissions in support of the application. I had not previously invited her to speak because I was not aware that she too was on the telephone line. But as an appellant she was of course entitled to be heard, so I gave leave for her to tell me why the application should be allowed, despite what I had already said.

8    Mrs Nyoni appeared to say that the bankruptcy of her husband dated from 2015. It was difficult to understand everything she said, but the tenor appeared to be that the bankruptcy proceedings had been 'going through single judge after single judge after single judge'. She claimed that she and her husband now had a right to go to the Full Court. She referred to claims, which I understand have been made in other proceedings, to the effect that the Shire of Kellerberrin 'went and cut the land [the subject of this appeal] and take half of the land and reduce the value of the house from $400,000 to $94,000'. She claimed that this had been ignored in the determination that the appeal be heard by a single judge.

9    Mrs Nyoni said that she had a right to defend herself and her family and her home. She seemed to assert that I wanted to give the trustee in bankruptcy everything that she wanted, including to kick her out of her home. She alleged that I did not care about justice and asserted that I was biased in favour of the trustee in bankruptcy. She went on in this vein for a little longer. At a certain point I took the view that I should not permit Mrs Nyoni to continue. There was no basis for her increasingly strident claims about bias and lack of regard for justice on my part.

10    I appreciate that the appeal is very important to Mrs Nyoni. Of course the question of whether, as she puts it, she and her family are going to be thrown out of their home is very important to her. I also acknowledge that the importance of the subject matter can be relevant to the exercise of the discretion as to whether to determine that the appeal be heard by a Full Court.

11    However that by itself is in my view insufficient to warrant such a determination in this case. Very many appeals from the Federal Circuit Court are heard where, like this one, the consequences are very important for individuals. That is not, by itself, a sufficient reason to refer an appeal to the Full Court.

12    The other reason that I understood Mrs Nyoni to put as to why the matter should be heard by a Full Court was the same as the reason set out in the affidavit that Mr Nyoni filed, which is that there have been multiple single judges that have heard other matters concerning Mr and Mrs Nyoni, and she considered that those judges have not handled those matters well. The response to that point must be the same. I was not persuaded that there was any basis to re-open the determination which the Chief Justice made.

13    Mrs Nyoni then raised further points. She appeared to say that the case was complex and that s 25(1AA)(b) of the Federal Court of Australia Act required it to be heard by a Full Court. However that is not what s 25(1AA) says. The structure of s 25(1AA) is that where there is an appeal from the Federal Circuit Court to this court, the appellate jurisdiction of this court will be exercised by a single judge unless a judge considers that it is appropriate for that jurisdiction to be exercised by a Full Court. What that means is that the default position, as it were, is that the matter will be heard by a single judge. The Chief Justice has determined that there is no reason to alter that default position in this appeal.

14    Mrs Nyoni also alleged that if the judge case managing the matter were to hear the appeal, that would give rise to bias. There is no basis for that suggestion. It is a long and well established process in this court and other courts for matters to be managed on a docket system, which often means that the judge case managing the matter is the judge who will ultimately hear and determine the matter. At the hearing, because of difficulty in understanding Mrs Nyoni's arguments, I put that in terms of conflict of interest. But whether it is put in those terms or in terms of apprehended or actual bias, it remains baseless.

15    I accept that s 25(1AA) gives a judge power to reverse or reconsider a determination by another judge that a matter not be heard by a Full Court. But for the reasons above, it was not appropriate to do so. I therefore dismissed the application, and went on to make orders listing the appeal to be heard by me, and programming it to that hearing.

Associate:

Dated:    26 August 2019