Nyoni v Beadle in her Capacity as Trustee of the Bankrupt Estate of Emson Clever Nyoni

1. The application for leave to appeal be dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

COLVIN J: 1 Mr Nyoni is a bankrupt. On the application of his trustee in bankruptcy, Judge Street of the Federal Circuit Court made orders for possession and sale of his jointly owned matrimonial property: Beadle in her Capacity as Trustee of Bankrupt Estate of Nyoni v Nyoni [2019] FCCA 1723. Mr Nyoni and his wife brought an appeal. The Chief Justice of this Court made a determination that it was appropriate for the appellate jurisdiction in relation to the appeal to be exercised by a single judge. Nevertheless, Mr and Mrs Nyoni sought orders for the appeal to be heard by a Full Court. The application was refused by Jackson J of this Court: Nyoni v Beadle in her Capacity as Trustee of the Bankrupt Estate of Emson Clever Nyoni (No 2) [2019] FCA 1375. Mr and Mrs Nyoni then brought the present application for leave to appeal the decision made by Jackson J. 2 On 17 October 2019, Mr and Mrs Nyoni were informed by email from my associate that their application for leave to appeal had been listed for hearing on 5 November 2019 at 2.15 pm, namely today. The email noted that at that time the Court would first consider the competency of any appeal. A submitting appearance was filed for Ms Beadle, the trustee. 3 In the meantime, the appeal against the decision by Street J was listed for hearing on 31 October 2019 before Jackson J. On that date, there was no appearance for Mr and Mrs Nyoni and they were in default of directions that required them to file submissions. Jackson J made orders dismissing the appeal: Nyoni v Beadle in her Capacity as Trustee of the Bankrupt Estate of Emson Clever Nyoni (No 3) [2019] FCA 1794. 4 Proceedings have also been commenced in New South Wales in which prerogative relief is sought against Jackson J and myself, being application NSD1716/2019 (NSW Proceedings). 5 Yesterday, Mr Nyoni sent an email to my associate in which he drew attention to the NSW Proceedings and all of the documents that have been filed and served in those proceedings. He said that a stay of these proceedings is sought in the NSW Proceedings pending the determination of those proceedings. 6 At the hearing today the matter was called three times. Mr and Mrs Nyoni did not appear. 7 For the following reasons, I dismissed the application for leave to appeal. 8 First, the application for leave to appeal is plainly incompetent: see Nyoni v Pharmacy Board of Australia [2018] FCA 1707 at [8]-[11]. 9 Second, the present application has been rendered nugatory by the recent orders of Jackson J dismissing the appeal against the decision by Street J and therefore no purpose would be served by a stay of these proceedings or their continuation. 10 Third, the mere commencement of the NSW Proceedings should not be allowed to perpetuate proceedings that are without merit or utility. 11 Fourth, even though the NSW Proceedings have been commenced against me, unless some arguable basis is advanced as to why I should not hear and determine the present application, there is a duty to discharge the judicial function. No such arguable basis has been demonstrated. The respondent is entitled to have the matter determined. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Colvin.