FEDERAL COURT OF AUSTRALIA

Nyoni v Morgan [2019] FCA 2039

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to r 2.27(e) of the Federal Court Rules 2011 (Cth) the applicant's proposed interlocutory application received by the Perth Registry on 29 November 2019 together with the submissions in support and affidavit of the applicant dated 29 November 2019 not be accepted for filing.

2.    The applicant's interlocutory application filed 14 November 2019 (save for paragraph 2) to set aside the order of Justice Katzmann of 12 November 2019 be listed for hearing at 9.30 am on 17 December 2019.

3.    The sixth and seventh named respondents are joined to the proceedings.

4.    The applicant is to file and serve any affidavits and submissions in support of the application to set aside the transfer by 10 December 2019.

5.    The respondents are to file and serve any affidavits and submissions in response by 13 December 2019.

6.    Paragraphs 4, 10, 11 - 19 of the applicant's interlocutory application dated 6 October 2019 be adjourned to the hearing of the amended originating application, such hearing to be on a date to be fixed.

7.    The programming and listing of the amended originating application be adjourned to 9.30 am on 17 December 2019.

8.    Costs reserved.

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

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application filed 29 October 2019 (application to join trustee, application for stay of proceedings) is adjourned to the date of the hearing of the originating application, such hearing to be on a date to be fixed.

2.    The time for the fourth respondent to file a notice of objection to competency be extended to 2 December 2019.

3.    The fourth respondent's notice of objection to competency filed 2 December 2019 be heard and determined prior to the substantive hearing of the applicant's originating application.

4.    The fourth respondent file and serve submissions and any affidavit material in support of the notice of objection to competency by 10 December 2019.

5.    The applicant file and serve submissions and any affidavit material in response to the notice of objection to competency by 13 December 2019.

6.    The notice of objection to competency application be listed for hearing on 17 December 2019 at 9.30 am.

7.    The programming and listing of the hearing of the originating application be adjourned to 9.30 am on 17 December 2019.

8.    Costs reserved.

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

REASONS FOR JUDGMENT

(edited from the transcript)

BANKS-SMITH J:

1    I have before me at this case management hearing two proceedings, being Nyoni v Morgan NSD 1345 of 2019 and Nyoni v Segal NSD 1716 of 2019. They have been transferred from the New South Wales District Registry to the Western Australian District Registry of the Court. Both matters relate (in part) to reviews of the decisions of Registrars of this Court.

2    The matters before me today are as follows:

(a)    a proposed application to re-transfer the proceedings in Nyoni v Morgan to New South Wales and to recuse myself from further participation in the proceedings;

(b)    the programming of the hearing of an application to set aside an order of Katzmann J to transfer Nyoni v Morgan to this Registry;

(c)    the programing of the hearing of interlocutory applications filed in Nyoni v Morgan and Nyoni v Segal seeking joinder (or consolidation) of the two proceedings and a range of other orders, including stays of certain proceedings pending determination of the review applications;

(d)    the programming of the hearing of a notice of objection to competency filed by the State of Western Australia in Nyoni v Segal; and

(e)    the programming of the substantive review applications in each matter.

3    In the end I have made orders today determining the issue as to filing of the proposed application and the question of joinder of the two proceedings. Other matters have been programmed.

4    Due to the complexity of the filed papers and the range of applications before me, it is useful to provide some background to the proceedings. I also add that a summary of the many proceedings concerning Mr Nyoni was compiled by Griffiths J in Nyoni v Cho [2019] FCA 560 at [9]-[21], and that decision provides useful context to the matters now before me.

Background - Nyoni v Morgan

5    On 29 July 2019 Mr Nyoni purported to file an originating application for judicial review against three members of the State Administrative Tribunal (SAT) of Western Australia, and against Justice White and Justice McKerracher of this Court.

6    The proposed application for judicial review traverses a large number of matters said to arise out of the decision of members of SAT and the decisions of White J and McKerracher J. It is useful to consider those matters briefly.

SAT proceedings

7    As to the SAT proceedings, the Pharmacy Board of Australia (Board) commenced proceedings in the vocational stream in SAT under the Health Practitioner Regulations National Law (WA) Act 2010 in 2015 in which Mr Nyoni was named as the respondent.

8    On 14 December 2018 SAT (constituted by the respondent members) determined that Mr Nyoni engaged in a way that constitutes professional misconduct as a registered pharmacist: Pharmacy Board of Australia and Nyoni [2018] WASAT 134. On 13 June 2019 SAT made orders against Mr Nyoni including an order cancelling his registration as a pharmacist and that he be precluded from reapplying for a period of two years: Pharmacy Board of Australia and Nyoni [2018] WASAT 134 (S).

9    There is no evidence that Mr Nyoni had appealed those decisions. An appeal from a decision of SAT lies to the Court of Appeal or Supreme Court of Western Australia: s 105(3) of the State Administrative Tribunal Act 2004 (WA).

Decision of Justice Siopis

10    In order to understand the relevance of the decisions of White J and McKerracher J to which I will turn, it is first necessary to address the decision of Siopis J in Nyoni v Pharmacy Board of Australia (No 6) [2018] FCA 526.

11    Mr Nyoni commenced an action against the CEO of the Department of Health, the Board and the Australian Health Practitioner Regulation Agency (AHPRA). The proceedings against the CEO of the Department of Health were dismissed by Siopis J on 25 October 2016.

12    Mr Nyoni claimed damages against the Board and AHPRA for misleading or deceptive conduct, defamation or injurious falsehood arising out of the recording on the Board's National Register and on AHPRA's website in December 2013 of a condition on Mr Nyoni's registration as a pharmacist that he was 'prohibited from taking or self-administering Schedule 8 drugs, save for those that may be legally prescribed for him'.

13    After a trial which took place in Perth on 16, 17, 29 and 30 August and 29 September 2017, Siopis J dismissed Mr Nyoni's claims on 17 April 2018.

Decisions of Justice White and Justice McKerracher

14    On 8 May 2018 Mr Nyoni filed a notice of appeal against the orders of Siopis J dismissing his claims.

15    The Board and AHPRA applied in the appeal for security for costs and White J ordered that security be provided: Nyoni v Pharmacy Board of Australia [2018] FCA 1313.

16    Mr Nyoni did not comply with the security for costs orders and sought to appeal the decision of White J. White J exercised appellate jurisdiction in making the security order, and so the appeal was incompetent. However, McKerracher J, who had carriage of the purported appeal, proceeded on the basis that there was a statutory power under s 25(2B)(bc) of the Federal Court of Australia Act 1976 (Cth) to set aside such an order. His Honour determined, however, that it was not appropriate to vary or set aside White J's orders: Nyoni v Pharmacy Board of Australia [2018] FCA 1707.

17    After the application before McKerracher J was dismissed, the Board and AHPRA applied to dismiss the appeal proceedings with costs based on the failure to provide security, and White J made orders in those terms: Nyoni v Pharmacy Board of Australia (No 2) [2019] FCA 225.

Decision of Registrar Morgan to reject filing - NSD 1345 of 2019

18    On 30 July 2019 Registrar Morgan of the New South Wales District Registry refused to accept for filing the proposed originating application which sought review of matters relating to the SAT decisions and the decisions of White J and McKerracher J.

19    Registrar Morgan relied on r 2.26 of the Federal Court Rules 2011 (Cth), which states:

Refusal to accept document for filing - abuse of process or frivolous or vexatious documents

A Registrar may refuse to accept a document (including a document that would, if accepted, become an originating application) if the Registrar is satisfied that the document is an abuse of the process of the Court or is frivolous or vexatious:

  (a)    on the face of the document; or

(b)    by reference to any documents already filed or submitted for filing with the document.

20    The Registrar gave the following written reasons for his refusal:

It appears that the Document raises issues and concerns that have already been dealt with by this court in previous proceedings commenced by you, including proceedings: WAD 357/2014 (before Justice Siopis), WAD 408/2018 (before Justice McKerracher) and WAD 191/2018 (before Justice White). It is not appropriate for you to commence fresh proceedings (by way of the Document) seeking this court re-agitate those issues and concerns again. Further, if the document has raised new issues for review by a court the use of the document to progress that review is not permitted under the Federal Court Rules.

For these reasons, in my view the application cannot possibly succeed and therefore the Document is an abuse of the process of the Court and frivolous and vexatious.

Mr Nyoni commences review proceedings in New South Wales

21    On 12 August 2019 Mr Nyoni commended the proceedings in NSD 1345 of 2019 by way of an originating application for judicial review of the decision of Registrar Morgan.

22    On 9 September 2019 Mr Nyoni filed an interlocutory application seeking a range of orders including orders staying decisions of SAT, joining the State of Western Australia and seeking various orders against the Board including an order mandating the re-registration of Mr Nyoni pending the hearing of the review application.

23    The application for review of Registrar Morgan's decision came before Katzmann J on 30 September 2019 for a first case management hearing.

24    At that case management hearing, Katzmann J noted that Mr Nyoni was seeking relief against a number of parties who were not parties to the proceedings. Her Honour made orders that:

1.    By 4pm on 4 October 2019, the applicant file and serve any amended originating application and affidavit in support (noting the applicant intends to add as parties to the proceeding the Pharmacy Board of Australia and the State Administrative Tribunal of Western Australia).

2.    By 4pm on 4 October 2019, the applicant file and serve any amended interlocutory application adding those parties against whom relief is sought.

3.    The case management hearing be stood over until 9.30am on 14 October 2019.

25    On 4 October 2019 Mr Nyoni filed an affidavit pursuant to the orders of Katzmann J.

26    On 6 October 2019 Mr Nyoni filed an amended originating application and an amended interlocutory application seeking to join numerous parties and seeking to stay or quash orders that had been made previously by SAT or this Court.

27    On 11 October 2019 each of the Board and AHPRA served a notice of address for service.

28    On 14 October 2019 Katzmann J conducted the adjourned case management hearing. The Board and Agency were represented. Counsel for the Board and AHPRA indicated that it was likely they would seek to transfer the proceedings to the Western Australian District Registry. Her Honour indicated that she had also been considering the question of a transfer as it seemed it would be more convenient for the matter to be heard in Western Australia. Her Honour made directions that any application for transfer be brought by 28 October 2019, that a supporting affidavit and submissions be filed with the application, that Mr Nyoni file submissions and that the matter be listed at a convenient time after that.

Order transferring review application to Western Australian District Registry

29    On 12 November 2019 Katzmann J, having considered the written submissions, determined the matter on the papers, and directed that the proceedings be transferred to the Western Australian District Registry of this Court. It was open to her Honour to determine the matter without a further oral hearing under s 20A of the Federal Court of Australia Act.

Application of 14 November 2019 to set aside transfer order

30    On 14 November 2019 Mr Nyoni applied by interlocutory application filed in the New South Wales District Registry to have Katzmann J's transfer order set aside under r 39.05(c) of the Federal Court Rules. Rule 39.05 provides:

Varying or setting aside judgment or order after it has been entered

The Court may vary or set aside a judgment or order after it has been entered if:

  (a)    it was made in the absence of a party; or

  (b)    it was obtained by fraud; or

  (c)    it is interlocutory; or

  (d)    it is an injunction or for the appointment of a receiver; or

  (e)    it does not reflect the intention of the Court; or

  (f)    the party in whose favour it was made consents; or

  (g)    there is a clerical mistake in a judgment or order; or

(h)    there is an error arising in a judgment or order from an accidental slip or omission.

31    On 19 November 2019 Flick J ordered that Mr Nyoni's application of 14 November 2019 be stood over for mention before a judge of the Western Australian District Registry on a date to be fixed.

Proceedings in Western Australia

32    On 21 November 2019 NSD 1345 of 2019 (and NSD 1716 of 2019) was allocated to my docket for determination.

33    On 25 November 2019 I arranged for my Associate to write to the parties by email. In accordance with Flick J's order regarding a listing for mention, I also arranged for the matter to be listed before me for a case management hearing.

34    The email from my Associate states:

I refer to the above matters, which have been allocated to the docket of Justice Banks-Smith.

The matters are listed for a case management hearing on Tuesday 3 December 2019 at 10 am.

The case management hearing is not to determine any of the applications, but to ensure her Honour is properly informed as to which applications need to be dealt with, how the various respondents have been joined to the proceedings to date, and to program the hearing of relevant applications.

Mr Nyoni - for NSD1345 of 2019, in your amended originating application filed 6 October 2019 you refer at ground 1 particular (iii) to Registrar Morgan's reasons for refusal to accept the document. Would you please provide a copy of those reasons. There is no necessity to provide any further documents prior to the case management hearing.

35    As to the reference to joinder of parties, it had become apparent to me based on submitting notices filed by the SAT members that Mr Nyoni had purportedly joined other parties to the application for judicial review, pre-empting any determination of the application for leave to do so made by the interlocutory application filed 6 October 2019. I wished to hear from Mr Nyoni about the status of that interlocutory application.

Proposed application

36    On Monday 2 December 2019, I received from the Western Australian District Registry a copy of an 'urgent letter', interlocutory application, affidavit and 'submissions in support of applicant's application for change of venue', with a request to determine whether the papers should be accepted for filing. The documents were lodged at the Registry on Friday 29 November 2019.

37    By the purported interlocutory application Mr Nyoni seeks orders that (relevantly):

1.    The proceeding be transferred from the Western Australian District Registry back to the New South Wales District Registry of the Federal Court of Australia.

2.    An order that Justice Banks-Smith be recused from case-managing and/or determining proceedings NSD1345/2019 and NSD1716/2019.

3.    An order that proceeding NSD1716/2019 is joined to this proceeding, pursuant to r 9.02 of the Federal Court Rules 2011.

4.    An order that the Court allocate a new judge in the New South Wales District Registry and that the Court determine all pending interlocutory applications to date on or before 3 December 2019.

38    It is apparent that the application to transfer the proceedings back to the New South Wales District Registry seeks to achieve the same result that is sought by Mr Nyoni's application to set aside the transfer order made by Katzmann J.

39    The only practical difference between the matters relied upon with respect to Mr Nyoni's opposition to Katzmann J's transfer order and the matters sought to be relied upon by the proposed interlocutory application lodged 29 November 2019 is that Mr Nyoni seeks an order that I recuse myself from involvement with his applications.

40    The basis for that recusal application (quoted from the 'urgent letter' and statements in the supporting affidavit) is that:

(a)    'Her Honour intends not to determine any of the urgently pending interlocutory applications but rather stultify the progress already duly conducted by Justice Katzmann of the New South Wales District Registry from 12 August 2019 to date';

(b)    'The case managing timetable outlined by Justice Banks-Smith is not intended to build on any progress in this case already achieved in the New South Wales District Registry';

(c)    'Justice Banks-Smith was involved in a Full Court hearing handled by former Justice Barker [Nyoni v Murphy [2018] FCAFC 75] who at the time did not consult the appellants regarding whether or not they objected to the appointment of any of the Justices as the Full Court';

(d)    'The decision handed down by former Justice Barker, Justice Banks-Smith and Justice Colvin concerns the issue of bankruptcy. This is relevant to the issues raised in this proceeding';

(e)    'There has been unjustified delay by Justice Banks-Smith in trying to reinvent the wheel of this proceeding with the underlying bias that she possess evident in her prior history of dealing with proceeding where the applicant is a party';

(f)    'Her orders outlined in her email of 25 November 2019 are not only an abuse of the process of judicial review, but an affront to legitimate actions taken by the applicant. Her Honour has not shown any impartiality and has demonstrated that she has been only working with the respondents'; and

(g)    'Once the matter was transferred to the WA Registry Justice Banks-Smith who has hitherto been precluded from participating in proceedings involving the applicant, was placed as a case management judge with no regard to her prior association with the bias litigation against the applicant'.

Determination - decision to direct Registry not to accept re-transfer interlocutory application

41    I have decided to direct the Registry to not accept filing of the proposed interlocutory application and supporting documents lodged 29 November 2019.

42    Rule 2.27(e) of the Federal Court Rules provides that a document will not be accepted for filing if the Court has given a direction that the document not be accepted. The nature of the power was considered by Kerr J in McDonald v Federal Court of Australia [2017] FCA 1216.

43    I make this direction because I consider Mr Nyoni's application of 29 November 2019 to be an abuse of process or vexatious.

44    First, it seeks to circumvent or duplicate the application already on foot by way of the interlocutory application dated 14 November 2019 which seeks to set aside the transfer order already made by Katzmann J. The appropriate course is for that application to be determined as soon as possible. The email from my Associate was of a standard and uncontentious nature setting a date for mention so that any outstanding programming orders can be made to progress the transfer application, and so the review, application to a final hearing.

45    Second, as to the proposed order in the application that I recuse myself, there is no substance to the allegations that the manner of my case management to date indicates bias and no substance to any other bias allegation. The case management hearing was convened quickly and in accordance with Flick J's order. I have made no case management orders up until today. There is nothing to suggest the 14 November 2019 application will not be dealt with quickly once any necessary programming orders are made and complied with by the parties. That application delays the determination of the review application and should be dealt with as soon as is practicable and fair to the various parties.

46    Further, there is no substance to the general allegation as to bias. The only matter involving Mr Nyoni in which I have had any involvement to date is the appeal to which he refers.

47    The background to that appeal is that on 17 February 2017 the Federal Circuit Court of Australia issued a sequestration order against the applicant's estate: Murphy v Nyoni [2017] FCCA 143. On 16 August 2017 Barker J dismissed an application for an extension of time to appeal from those orders: Nyoni v Murphy [2017] FCA 941.

48    Mr Nyoni sought to file in this Court an interlocutory application and supporting affidavit in which he sought to have Barker J's judgment and orders set aside relying on r 39.05 of the Federal Court Rules. He also sought an order that Barker J be recused from the proceedings. The Registrar wrote to the applicant and informed him that she was rejecting his documents for filing under r 2.26 of the Federal Court Rules. The applicant then sought to have the Registrar's decision reviewed, relying upon s 35A(5) of the Federal Court of Australia Act.

49    On 8 December 2017 Siopis J determined and dismissed the application for review: Nyoni v Murphy (No 2) [2017] FCA 1479. Mr Nyoni appealed Siopis J's orders to the Full Court. On 25 May 2018 the Full Court (constituted by Barker, Colvin JJ and myself) dismissed the appeal: Nyoni v Murphy [2018] FCAFC 75.

50    The fact that I was involved in determining an appeal relating to a different decision, being a decision of Siopis J based on a decision of a different Registrar, does not disclose any bias with respect to Mr Nyoni. Nor does it disclose any matter that might affect the manner in which I conduct a review of the decision of Registrar Morgan or consider the complaints made as to the other parties to the proceedings. An adverse finding against a party in one matter does not of itself establish bias.

51    Contrary to Mr Nyoni's assertion, I have not been precluded from participating in proceedings involving him.

Joinder of proceedings - NSD 1716 of 2019: Nyoni v Segal

52    The parties agreed before me that Mr Nyoni's application to join the two proceedings could be dealt with today. It is opposed by the sixth and seventh respondents in Nyoni v Morgan and by the fourth respondent in Nyoni v Segal. Accordingly it is necessary to also provide some background as to Nyoni v Segal.

The rejected application

53    Mr Nyoni seeks a review of a decision of Registrar Segal to refuse to accept for filing an originating application for judicial review dated 9 September 2019 of decisions of Jackson J and that also names the State of Western Australia as a respondent.

54    On 13 September 2019 the Registrar refused to accept filing of the application, providing the following reasons:

I note the terms of Rule 2.26 of the Federal Court Rules 2011, which states:

A Registrar may refuse to accept a document (including a document that would, if accepted, become an originating application) if the Registrar is satisfied that the document is an abuse of the process of the Court or is frivolous or vexatious:

    (a)    on the face of the document; or

(b)    by reference to any documents already filed or submitted for filing with the document.

In accordance with that rule, I refuse to accept the document. My reasons for doing so are as follows.

I note that the document, in Form 66, seeks to commence an application in the original jurisdiction of the Federal Court for judicial review. The document names as respondents Justice Jackson of the Federal Court and the State of Western Australia.

In relation to Justice Jackson, I note that various orders are sought in relation to his Honour's conduct as a Judge in proceedings in the Federal Court.

I note that no orders are sought against the State of Western Australia.

In my view, the proposed application is an abuse of process as it is foredoomed to fail: Walton v Gardiner (1992-93) 177 CLR 378 at 393. The reason it is foredoomed to fail is that the Court (constituted by a Judge) cannot order that the Court (constituted by a Judge) do or not do an act or thing: see Bird v Free (1994) 126 ALR 475. It is also foredoomed to fail to the extent that it seeks to duplicate matters presently before the Court in proceedings WAD343/2019 and NSD810/2019. In relation to the State of Western Australia, there appears to be no legal basis for naming it as a party.

The eLodgment containing the document has been rejected.

The originating application

55    On 11 October 2019 Mr Nyoni filed an originating application in New South Wales seeking judicial review of the decision of Registrar Segal and judicial review of the conduct of Jackson J and Colvin J in various proceedings. Mr Nyoni also names as respondents the State of Western Australia, the CEO of the Department of Health, Jillian Murphy and Theresa Beech (the State has filed a notice of objection to competency). It appears that the CEO of the Department of Health, Jillian Murphy and Theresa Beech are joined because Mr Nyoni asserts they had a role as petitioning creditors.

56    On 29 October 2019 Mr Nyoni filed an interlocutory application in New South Wales seeking that the trustee in bankruptcy of Mr Nyoni's estate, Kristen Beadle, be joined to the proceedings and seeking orders that various decisions of Jackson J and Colvin J be stayed under s 15 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) pending the determination of the review application.

57    On 19 November 2019 Flick J transferred the 29 October 2019 interlocutory application to the Western Australian District Registry.

Determination - joinder

58    Mr Nyoni seeks to join the proceedings in NSD 1716 of 2019 to those in NSD 1345 of 2019 and so, it would seem, seeks to have both matters heard in New South Wales on the assumption that the order made by Katzmann J is set aside.

59    I have decided to refuse the application for joinder or consolidation of the two matters.

60    There is no forensic benefit in making such an order. Mr Nyoni has brought separate applications. The two proceedings seek review of different decisions, and involve different respondents and counsel. The underlying alleged conduct complained of was that of different persons. Any overlap is limited to factual context, although I accept there may be a consideration of certain facts in both matters. Even so, there is an insufficient nexus to justify a step which in my view would unnecessarily complicate matters.

61    That does not mean that the two matters cannot be managed efficiently together and potentially heard during the same week.

Programming orders

62    After the above reasons were delivered in Court, orders were made programming the balance of the interlocutory applications with the intent that the application to set aside the transfer order of Katzmann J and the application relating to the notice of competency are listed for hearing on 17 December 2019, with the extant balance of the interlocutory applications adjourned to the hearing of the main applications on a date to be fixed.

Associate:

Dated:    3 December 2019

SCHEDULE OF PARTIES