Nyoni v Chee Koon Hee

General principles - amendment of originating application 7 Rule 8.21 of the Rules provides that an applicant may apply to the Court for leave to amend an originating application for any reason, including: (a) to correct a defect or error that would otherwise prevent the Court from determining the real questions raised by the proceeding; or (b) to avoid the multiplicity of proceedings; or (c) to correct a mistake in the name of a party to the proceeding; or (d) to correct the identity of a party to the proceeding; or (e) to change the capacity in which the party is suing in the proceeding, if the changed capacity is one that the party had when the proceeding started, or has acquired since that time; or (f) to substitute a person for a party to the proceeding; or (g) to add or substitute a new claim for relief, or a new foundation in law for a claim for relief, that arises: (i) out of the same facts or substantially the same facts as those already pleaded to support an existing claim for relief by the applicant; or (ii) in whole or in part, out of facts or matters that have occurred or arisen since the start of the proceeding. 8 Under the predecessor to r 8.21 (O 13, r 2 of the Federal Court Rules 1979 (Cth)), the general approach was that "leave to amend should be granted unless the proposed amendment was obviously futile or would cause substantial prejudice or injustice …": Medich v Bentley-Smythe Pty Ltd [2010] FCA 494 at [8]. 9 However, in relation to r 8.21, the power to grant or refuse leave "must", by virtue of s 37M(3) of the Federal Court of Australia Act 1976 (Cth) (the FCA Act), be exercised in the way that best promotes the overarching purpose of the civil practice and procedure provisions of the FCA Act and the Rules: Bowen Energy Ltd v 2KD Drilling Pty Ltd [2012] FCA 275 at [8]. That purpose is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible: s 37M of the FCA Act. The position was the same in respect to the precursor to r 8.21: Australian Competition & Consumer Commission v Jutsen (No 2) [2010] FCA 982 at [12].

Background 10 I delivered judgment in this proceeding recently in respect to Mr Nyoni's application for injunctive relief Nyoni v Chee Koon Hee [2013] FCA 701. The background to the proceeding is set out at length there. These reasons should be read together with my earlier reasons. 11 As I explained in my earlier reasons, Mr Nyoni's claims are, in the legal sense, incoherent and do not establish material facts disclosing the alleged causes of action. That being the case, his proposal to bring defamation within the accrued jurisdiction of the Court fails at the first hurdle. His supporting affidavit is obscure in its terms. It is assertive in nature and difficult to comprehend. For example, para [4], which is the introduction to the affidavit, is in the following terms. The difficulties to which I have referred are self-evident: 4. Introduction: (a). The matrix of this current proceeding is proceeding WAD316/2010 where three of the respondents numbers 3, 4 and 11 are directly involved in WAD 316/2010. In this proceeding, WAD 154/2013, respondents 3, 4, 5 and 11 engulfed respondents 1, 2, 6, 7, 8, 9, 10 and 12 as discussed below. Respondent 5 has, at all material times deputised .respondents 3 and 4, before becoming the CEO of respondent 11 in early 2013. (b). Respondents 1 and 2 are the disciples of respondents 3, 4 and 11, who together hatched the plot leading to these proceedings. Respondent 7 is the means used to purportedly attempt to purchase my property at 92 Massingham Street, Kellerberrin, without disclosing identities or authenticities behind the scheme by signatory respondent 1 and 2. (c). Respondent 6 is an appointee of respondent 11, and works under the auspices of respondents 3, 4 and 11, at all material times. Respondent 6 has been using his position as GP to infiltrate his clients, during clinical consultations, to degrade and defame me, and to collude with respondents 1, 2, 3, 4, 5 in destabilising my pharmacy business together with respondent 11 and 12. (d). Respondent 8 with the assistance of respondents 3. 4 and 5 forged documents to procure a false debt against me and went further to generate multiple proceedings against me on that false basis. (e). Respondent 10 replaced Robert Bateman, a former Health Department inspector, also implicated with respondent 3 in WAD316/2010. Respondent 10 was in charge of fabricating and falsifying evidence against me to procure a criminal conviction with the knowledge and assistance of respondents 3, 4, 5, 11 and 12. As a result, a recommendation was passed on to respondent 9, to revoke my Schedule 8 Pharmaceutical Licence. (f) Respondent 12 is central to all false allegations made against me to the Health Department, former Pharmaceutical Council of Western Australia and other Regulatory Authorities. Respondent 12 is employed by the Health Department WA under respondent 11, directed by respondents 3, 4, 5 and 6 at all material times. Transcribed without amendment.

Substitution of the affidavit in place of the statement of claim 12 Rule 8.05(1) of the Rules requires that an originating application must be accompanied by a statement of claim if the applicant seeks relief that includes damages. 13 The originating application in its current, issued, form seeks "damages for conspiracy" and "damages for [loss of] past, present and future earnings". 14 It follows that it is a requirement of the Rules that the applicant's originating application must be accompanied by a statement of claim, not an affidavit, and that leave should not be granted to substitute the affidavit in place of the statement of claim. 15 Even if the affidavit were treated as a substitute in place of the statement of claim, it is characterised by repeated conclusionary assertions of bad faith, unsupported by pleaded material facts together with scandalous statements. 16 Leaving aside the procedural difficulties, the proposed amendments are seriously defective in relation to the defamation claims asserted in the affidavit. 17 The parts of the affidavit relied upon by Mr Nyoni in this respect are as follows: 9. Respondent FIVE (Raymond Griffiths) . . . (c). Respondent 5 secretly organised a petition against me and my business which was circulated for signatures around the community of Kellerberrin. The petition was entitled "Kellerberrin Pharmacy Customers" requesting full names and signatures of each and every member. In an effort to maximise damage to me, respondent 5 forwarded this petition to a Federal MP of the Wheatbelt region, who observed that the petition was "non-conforming". (d). Respondent 5 has very close links to the farming community in Kellerberrin and continues to seek support from National Party officials to damage my business and career further. Respondent 5 asked the Federal Senator for the National Party in a letter aroind 2010 to complain to the Health Minister of WA about Kellerberrin Pharmacy. He then incited a few other people to do the same. To date I am only aware of about 5 such complaints sent directly to the Health Minister. Other complaints were lodged with the Opposition Parties. . . . 10. Respondent SIX (Dr Amdrew Van Ballegooyen) . . . (a). Generic Brand Substitution . . . 2. Unfortunately, since I started working here with this only doctor in town, he has been telling his patients, my only customers, that ..."Watch out Emson will give you wring medicines..." One lady was explicit on this in 2006, repeated by other customers, in 2008, 2009, 2010, 2011, 2012 and now 2013 … that "Andrew told me that Emson does not care, he gives cheap drugs to get himself rich.." . . . 13. Respondent NINE (Chief Executive Officer of Health WA and Respondent TEN (Jillian Murphy) . . . (b). Events leading to this proceeding stretch as far back as 2007 or earlier based on the protracted dispute between myself and the former Chief pharmacist, Murray Patterson) and former Health Department investigator (Robert Bateman) (Nyoni v Patterson is c - [2012] WASCA 171; BC201206432; Nyoni v Shire of Kellerberrin (No 2) - [2012] FCA 1477; BC201209972). Former Inspector of the Health Department, to destabilise my pharmacy business. Subsequently, . . . 15. Respondent Twelf (Theresa Beech). . . . (d). Over the years, respondent 12 hasa made innumerable defamatory imputations amongst the customers of the pharmacy in collusion with respondents 3, 4, 5, 6 and 11, Dryandra Nursing Home and Iris Iitis Nursing Home:and the public at large that " i. the pharmacist of the Kellerberin pharmacy, i is dispensing wrong and foul medicines and therefore is going to lose his license". ii. Respondent 1 together with tge othe respondents referred to above at the end of each year towards Christmas, since 2007 would come up to the customers in the premises of the pharmacy without any fear and falsely explain to the customers and the public nearby that "the pharmacist is leaving town at the end of this year". iii. As a result of the same the customers would come into the pharmacy to seek explanation from me embarrassing me, by dismissing these frivolous claims time after time. iv. Those rumours destroyed tmy business by severely eroding my confidence and self-esteem. Transcribed without amendment. 18 In exercising the discretion to grant leave to amend, the Court must have regard to the overarching purpose. That requires an assessment of whether the proposed amendments best serve the just resolution of the dispute according to law and as quickly, inexpensively and efficiently as possible. 19 To the extent the applicant relies on the affidavit as indicative of what would be included in any subsequent statement of claim, it falls well short of deposing to any material facts that would meet the requirements for establishing a cause of action in defamation against the relevant respondent. 20 The elements of a cause of action are well established. A defamation pleading must: (a) set out, verbatim, the precise words allegedly published. This is because the words actually published are the cause of action: Kone Elevators Pty Ltd v Elex Pty Ltd [2000] FCA 711 at [16]-[21]; Harris v Warre (1879) 4 CPD 125; (b) specify the date on which the alleged publication took place. This is essential because a one year limitation period applies to a claim for defamation: s 15 of the Limitation Act 2005 (WA); (c) specify the occasion of publication, the publisher of the material, and the recipient of the alleged defamatory matter. This is because the act of publication is also an essential element of the cause of action, and also because publication to or by one person may be actionable, whereas publication to or by another person may not be actionable. Further, the respondent is, in any event, entitled to know the case they have to meet, so they can meet the charge: Bishop v Bishop [1901] P 325 at 328; (d) specify the basis for asserting the publication was of and concerning the applicant. Also, in all but the most exceptional case the meanings alleged to arise from the published material must then be pleaded with precision, and it must be specified whether those meanings arise in the natural and ordinary meaning of the words published, or by way of "true innuendo": Gumina v Williams (No 1) (1990) 3 WAR 342; Taylor v Jecks (1993) 10 WAR 309. 21 The lack of specificity risks enlarging the scope, cost and delay in resolving the dispute and prevents an assessment of whether the proposed amendment is futile (e.g. statute barred) or would cause substantial prejudice or injustice. 22 Many of the allegations are imprecise, vague and ambiguous without any particulars of what was stated or published, what the nature of the imputations were, when it was said, to whom it was said or published.

CONCLUSION 23 Neither the proposed amendment nor the affidavit assist to correct a defect or error that would otherwise prevent the Court from determining the real questions raised by the proceeding or make a claim that arises out of facts already pleaded: r 8.21(1)(a) and (g) of the Rules. 24 To the extent the applicant relies on the affidavit as indicative of the facts on which he intends to rely, the amendment is futile and would cause substantial prejudice or injustice which could not be compensated for given the unsupported scandalous nature of many of the allegations, and it would be contrary to the "overarching principle" defined in s 37M of the FCA Act. 25 Accordingly, the application for leave should be dismissed. However, although the applicant will require to pay the several respondents or groups of respondents' costs, I will reserve the question of costs and the nature of those costs and will determine these in a separate judgment. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.