Nyoni v Morgan

Nyoni v Morgan - [2019] FCA 2039 - FCA 2019 case summary — Zoe

[6]

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.

[10]

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'.

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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.

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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.

Parties

Applicant/Plaintiff:

Nyoni

Respondent/Defendant:

Morgan

Legislation Cited (4)

Federal Court of Australia Act 1976(Cth)ss 20A, 25(2B), 35A

Federal Court Rules 2011(Cth)rr 2.26, 2.27, 39.05

State Administrative Tribunal Act 2004(WA)s 105

Administrative Decisions (Judicial Review) Act 1977(Cth)

Cases Cited (11)

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.

[2018] WASAT 134

(1994) 126 ALR 475