FEDERAL COURT OF AUSTRALIA

Nyoni v Morgan (No 2) [2020] FCA 568

ORDERS

THE COURT ORDERS THAT:

1.    The applicant's interlocutory application filed 14 November 2019 to set aside the order of Katzmann J of this Court made 12 November 2019 be dismissed.

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

REASONS FOR JUDGMENT

BANKS-SMITH J:

1    These reasons deal with an application by Mr Nyoni to set aside a decision of Katzmann J made 12 November 2019 by which these proceedings were transferred from the New South Wales District Registry of this Court to the Western Australian District Registry.

2    The parties were last before me on 3 December 2019. The background to this application is addressed in reasons delivered on that day: Nyoni v Morgan [2019] FCA 2039.

3    Relevantly, on 30 July 2019 Mr Nyoni sought to file a proposed originating application seeking review of matters relating to decisions made by the State Administrative Tribunal of Western Australia (SAT) and by White J and McKerracher J of this Court. Registrar Morgan refused to accept the document for filing. For ease of reference I will include a summary of the history of this application from the time of Registrar Morgan's decision until it was transferred to the Western Australian District Registry by reference to my reasons in Nyoni v Morgan:

[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

4    On 21 November this matter was allocated to my docket for determination. At the first case management hearing on 3 December 2019 I listed the application of 14 November 2019 to set aside the order of Katzmann J for hearing on 17 December 2019.

5    On 10 December 2019 Mr Nyoni filed submissions in support of his application to set aside the transfer order.

6    On 12 December 2019 Mr Nyoni emailed the Court requesting an adjournment of the hearing on medical grounds for some two months. On 16 December 2019 Mr Nyoni provided a medical certificate. Although I had reservations about the generality of the medical certificate, the sixth and seventh respondents (being those who are participating in the proceedings, and who are referred to as the Board and AHPRA respectively) did not oppose the adjournment and accordingly the hearing was vacated.

7    On 16 December 2019 the Court advised the parties that the hearing was re-listed listed on 5 February 2020.

8    On 4 February 2020 Mr Nyoni sought another adjournment on medical grounds until and including 21 March 2020. The adjournment was not opposed by the Board and AHPRA.

9    Via chambers communication, Mr Nyoni was informed that the medical certificate on which he sought to rely was inadequate and that no further adjournments would be permitted on medical grounds unless a valid medical certificate is provided.

10    The Court also requested that the parties provide their unavailable dates for the period of 23 March 2020 to 1 May 2020. Mr Nyoni did not respond to the request for unavailable dates.

11    On 11 February 2020 the Court advised the parties that the hearing of the application to set aside the transfer order had been re-listed for Thursday 26 March 2020.

12    On 13 March 2020 the Court emailed the parties regarding the Court's response to the global COVID-19 pandemic. The Court proposed that the hearing listed for 26 March 2020 proceed via telephone. The Court requested that the parties provide their best telephone numbers so that the Court could make necessary arrangements for the hearing. The solicitor for the Board and AHPRA provided a telephone number. Mr Nyoni did not respond.

13    On 16 March 2020 the Court emailed the parties requesting that Mr Nyoni inform the Court by 4.00 pm that day as to whether he consents to the application listed for 26 March 2020 proceeding via telephone. The Court noted that the position as to the manner in which the hearing might proceed remains open to change as the response to the COVID-19 pandemic develops. Mr Nyoni did not respond.

14    Having regard to Mr Nyoni's failure to respond for the purpose of facilitating a telephone hearing and having regard to the detailed submissions already filed relating to the set aside application, on 17 March 2020 I proposed to the parties that I would to deal with the application on the papers. The email from my chambers contained a brief explanation as to the meaning of the expression 'to deal with an application on the papers'. The email requested that Mr Nyoni confirm receipt of the email as soon as possible.

15    The solicitor for the Board and AHPRA acknowledged receipt of the email of 17 March 2020. Mr Nyoni did not reply to the email.

16    The Court has received no communication from Mr Nyoni since 4 February 2020. It is apparent that the Court has utilised the same email address that Mr Nyoni has utilised when he has sought adjournments of his application. In all of the circumstances I have decided that determination of the matter would not be significantly aided by an oral hearing and that it is appropriate to determine the application on the papers under s 20A(2)(c) of the Federal Court of Australia Act 1976 (Cth), having regard also to r 1.31(2) of the Federal Court Rules 2011 (Cth).

The application and principles

17    Mr Nyoni seeks to have the order of Katzmann J set aside under r 39.05(c) of the Federal Court Rules. That provision empowers the Court to set aside a judgment or order after it has been entered if it is interlocutory.

18    The principles were collected by McKerracher J in Nyoni v Pharmacy Board of Australia [2018] FCA 1707 as follows:

[15]    In the r 39.05 context, this Court has identified the following principles as relevant:

(a)    the scope of the power to vary or set aside an order or judgment after entry is more circumscribed than that provided for in relation to the pre-entry situation. It should be exercised with caution and in exceptional circumstances, mindful of the overarching principle of the finality of litigation: Australian Securities and Investments Commission v ActiveSuper Pty Ltd (No 4) [2013] FCA 318 per Gordon J (at [6] and the authorities therein cited);

(b)    the discretion to vary an order is not confined, but must be exercised judicially and the Court must have regard to all the evidence and arguments before it at the time of the application: Campaign Master (UK) Limited v Forty Two International Pty Ltd (No 4) (2010) 269 ALR 76 per Yates J (at [68]);

(c)    the power conferred must be exercised in a way that best promotes the overarching purpose identified in s 37M of the FCA Act, of facilitating the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible; and

(d)    the Court must also consider the rights and interests of third parties. Orders may be varied or set aside where the party in whose favour the order was made consents, provided that doing so will not detrimentally affect the rights or interests of third parties: Australian Securities and Investments Commission v Yandal Gold [2003] FCA 77 per Merkel J (at [23]); Perre v Apand [2004] FCA 1220 per Selway J (at [10]-[11]).

[16]    It would be wrong to regard these as discrete considerations. The emphasis placed by this Court in cases considering the setting aside or variation of orders on the need for there to be 'exceptional circumstances' reflects the importance placed, including on appeal, on the finality of litigation. The principle of finality of litigation has an important role to play which, having regard to considerations of case management, is not unimportant even in cases concerning orders of a procedural nature. It is to be borne in mind that the FCA Act and Rules must be interpreted and applied, and every power conferred by them must be exercised or carried out, in the way that best promotes the overarching purpose identified in s 37M of the FCA Act of facilitating the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible. That overarching purpose will not be achieved, but will be subverted, by a too-ready resort to, or incautious application of, the power to vary or set aside orders that have been made and entered.

Before Katzmann J

19    Justice Katzmann received an affidavit and submissions addressing the Board's and AHPRA's transfer application filed by their solicitors on 28 October 2019. Mr Nyoni filed submissions dated 6 November 2019.

20    The relevant matters raised by the Board and AHPRA were:

(a)    the relevant principles on a transfer application are that the discretion is to be exercised having regard to considerations of sound case management, the national character of the court and practical considerations including the convenience of the parties: Australian Competition and Consumer Commission v Virgin Mobile Australia Pty Ltd [2002] FCA 1239 at [16];

(b)    Mr Nyoni continues to reside in Western Australia;

(c)    Mr Nyoni appears to have brought the proceedings in New South Wales to avoid having them heard by a judge of the Western Australian District Registry in circumstances where there was no reason they could not be heard by certain of those judges or by a docket judge located outside of Western Australia;

(d)    Mr Nyoni appeared to be doing no more than seeking to have his choice of venue for his own capricious reasons;

(e)    all respondents other than White J and Registrar Morgan are located in Western Australia, and Registrar Morgan has filed a submitting appearance;

(f)    the Board and AHPRA have previously been respondents in proceedings brought by Mr Nyoni in Western Australia, and accordingly, in addition to being located in Western Australia, they have retained solicitors and counsel throughout those proceedings who are based in Western Australia. They have retained the same solicitors and wish to retain the same counsel in these proceedings. The Board and AHPRA will incur additional legal costs if the proceedings are pursued in New South Wales;

(g)    all previous actions involving the Board, AHPRA and Mr Nyoni have been conducted in Western Australia. The dispute before SAT was conducted in Western Australia, and relates to events in Western Australia; and

(h)    there is an absence of any substantive connection between the proceedings and New South Wales.

21    Mr Nyoni also filed submissions. Mr Nyoni commenced the submissions by summarising the nature of the underlying claims against the respondents that he wishes to pursue by the originating application that was rejected for filing. The nature of those claims will be addressed for the purpose of the review application and it is not necessary on this application to descend into details of Mr Nyoni's complaints, save to note that there does not seem to be any factual nexus with New South Wales raised by those complaints. More specifically, Mr Nyoni addressed the issue of the location of the hearing as follows:

(a)    neither McKerracher J nor White J have opposed the application for transfer;

(b)    none of the second, third, fourth or fifth respondents have opposed its transfer;

(c)    the Board and AHPRA must satisfy the Court that Mr Nyoni brought the proceedings in New South Wales capriciously, and that means establishing that the decision was random, fickle or intended to prejudice the respondents;

(d)    Mr Nyoni is entitled to have the proceedings heard where they were filed, unless there is a 'manifest preponderance of convenience' to trying the proceedings in the place where they were commenced, citing National Mutual Holdings Pty Ltd v Sentry Corporation (1988) 19 FCR 155;

(e)    the proceedings were not commenced in New South Wales capriciously but because there was no judge available in Western Australia who could deal with the application due to their role in other matters involving Mr Nyoni with a 'common substratum of factors inextricably linked to each other';

(f)    the proceedings were brought in New South Wales to best facilitate the just, efficient, timely and cost-effective resolution of the proceedings;

(g)    there are national effects of some of the actions of the Board and AHPRA, such as conditions that were imposed on Mr Nyoni's pharmacy registration and there is no 'preponderance of convenience' to those parties in having the matter conducted in Western Australia;

(h)    AHPRA and the Board have not acted reasonably in appointing Western Australian solicitors for this matter;

(i)    hearings can be conducted by video or telephone so that there is no real inconvenience to the Board and AHPRA in having the application proceed in New South Wales; and

(j)    where no parties have participated 'in any form of defence' a summary judgment application in New South Wales would facilitate the just, efficient and cost-effective resolution of the proceedings.

22    Justice Katzmann did not publish reasons but made orders on 12 November 2019 indicating that after consideration of the submissions filed by Mr Nyoni and on behalf of the Board and AHPRA, the proceeding was to be transferred to the Western Australia District Registry. The parties were informed by email that Katzmann J decided to determine the application on the papers under s 20A(2)(c) of the Federal Court of Australia Act and pursuant to r 1.31(2) of the Federal Court Rules.

This application

23    As indicated above, Mr Nyoni applied to have the order set aside and it was programmed for a hearing that was intended to proceed on 17 December 2019. I directed that the parties file and serve any further affidavits or evidence relating to the application to set aside by 10 December 2019.

24    Mr Nyoni filed an affidavit and submissions on 10 December 2019. Mr Nyoni titled his submissions 'submissions in support of Applicant's application for change of venue'. It is apparent from the date of filing of Mr Nyoni's submissions and from their content that, regardless of their title, the submissions of 10 December 2019 and the affidavit were filed for the purpose of the hearing of the application to set aside, then listed for 17 December 2019. I have had regard to Mr Nyoni's affidavit and submissions of 10 December 2019 for the purpose of this determination.

25    Mr Nyoni's submissions of 10 December 2019 largely traverse the same matters raised in the submissions filed before Katzmann J, including the submissions based on my prior involvement in a matter involving Mr Nyoni that were addressed in my reasons in Nyoni v Morgan at [40], [46]-[51]. It is not necessary to repeat those matters. The submissions also set out the chronology of this application, and raised the question of alleged delay that I have touched on above and that was also addressed in Nyoni v Morgan at [40], [45].

Determination

26    Mr Nyoni has not pointed to any matter that was not raised before Katzmann J or any matter that might establish a reason why Katzmann J's decision should be set aside. On the material before her Honour, and having regard to the principles, the decision to transfer the matter to Western Australia was clearly open and, with respect, is a decision with which I agree.

27    I take into account that I should only exercise the discretion to set aside an order under r 39.05 of the Federal Court Rules with caution. Although the discretion is not circumscribed, it is appropriate to give considerable weight to the course that best promotes the overarching purpose identified in s 37M of the Federal Court of Australia Act, of facilitating the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible.

28    Having regard to the lack of any practical connection with New South Wales, and noting the significant connection with Western Australia, both in terms of events and the location of parties and solicitors with entrenched knowledge, I consider the dispute can be dealt with in the most efficient manner, in terms of time and expense to the parties, in Western Australia.

29    The fact that many of the respondents have done no more than file submitting notices does not detract from the force of the submissions of the Board and AHPRA, being the parties who have a considerable interest in the outcome of the application because of their active involvement in the proceedings.

30    The issue of delay, although once elevated by Mr Nyoni, no longer seems to have a central role, having regard to his requests for adjournments. Regardless, now that the question of the place of hearing has been determined by these reasons, the hearing of the remaining matters the subject of Mr Nyoni's review application may be listed for hearing in Western Australia at a time and in a manner suitable to the parties and the Court, having regard to current practices relating to COVID-19.

31    It follows that I dismiss Mr Nyoni's application to set aside the decision of Katzmann J.

32    Costs will be dealt with in the main application so that Mr Nyoni may be heard.

Associate:

Dated:    30 April 2020

SCHEDULE OF PARTIES