Nyoni v Pharmacy Board of Australia

AND: PHARMACY BOARD OF AUSTRALIA First Respondent

DR ANDREW ROBERTSON IN HIS CAPACITY AS THE DELEGATE TO THE CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF HEALTH Second Respondent

AUSTRALIAN HEALTH PRACTITIONER REGULATION AGENCY Third Respondent

JUDGE: MCKERRACHER J DATE OF ORDER: 8 NOVEMBER 2018

1. The applicant's application for leave to appeal, filed 11 September 2018, be treated as an application to vary or set aside orders pursuant to s 25(2B)(bc) of the Federal Court of Australia Act 1976 (Cth).
2. The applicant's application be dismissed with costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

MCKERRACHER J: 1 This proceeding was commenced by the filing of an application for leave to appeal against a decision of White J relevantly ordering security for costs in an appeal proceeding (WAD191/2018): Nyoni v Pharmacy Board of Australia [2018] FCA 1313. For the reasons that follow I proceeded on the basis that the application for leave to appeal was an application to vary or set aside the orders of White J pursuant to s 25(2B)(bc) of the Federal Court of Australia Act 1976 (Cth) (the FCA Act) and dismissed that application.

Background 2 On 17 April 2018, Siopis J dismissed the claims by the Applicant, Mr Nyoni, for damages against the Pharmacy Board of Australia and the Australian Health Practitioner Regulation Authority (AHPRA) (collectively, the Respondents): Nyoni v Pharmacy Board of Australia (No 6) [2018] FCA 526. The claims concerned misleading and deceptive conduct, defamation and injurious falsehood arising as a consequence of the Board recording on its National Register, and AHPRA on its website, a condition on Mr Nyoni's registration as a pharmacist. 3 On 8 May 2018, Mr Nyoni filed a Notice of Appeal against the dismissal of his claims, giving rise to the appeal proceeding. 4 On 13 July 2018, the Respondents filed an interlocutory application seeking security for costs. 5 On 28 August 2018, White J made the following orders in the appeal proceeding: (1) Within 28 days of the date of this order, the Appellant is to provide security in the sum of $20,000 for the Respondents' costs of the appeal. (2) Such security is to be provided by way of payment into Court or by the provision of a bank guarantee in a form acceptable to the Registrar. (3) The appeal be stayed until the security is given. (4) There be liberty to the parties to apply. 6 On 11 September 2018, Mr Nyoni commenced these proceedings with the filing of an application for leave to appeal.

Grounds of the Application 7 Mr Nyoni's application for leave to appeal set out grounds in these terms: 1. The Honourable Justice White erred in law and fact by giving too much weight to the Respondents' evidence by granting a security of costs order without any assessment of the prospects of success. [19]. 2. The Honourable Justice White erred in law and fact in holding that there was risk that a costs order will not be satisfied in circumstances where Respondents' defence is not established by statute or commonwealth [20]. 3. The Honourable Justice White erred in law and fact in holding that the order for security of costs would not lead to stifling of a reasonably arguable claim by denying substantial commonwealth authorities on the subject [25]. 4. The Honourable Justice White erred in law and fact by relying heavily on Respondents' defences on cause of Mr Nyoni's impecuniosity by denying the root cause being the imposition of the nine Conditions on applicant's pharmacy registration [26-31]. 5. The Honourable Justice White erred in law and fact in holding that Applicant had been a subject of the Vexatious Proceedings Restriction Act 2002 (WA) and in truth none of the Applicants proceedings have ever been referred to any Attorney General in Australia [32-38]. 6. The Honourable Justice White erred in law and fact in concluding that a security of costs of $20000 was appropriate in circumstances where His Honour knew that the Respondents had no other defence and only seeking to frustrate the course of justice [39-44].

Competence of the 'Appeal' 8 Mr Nyoni sought to leave to appeal the orders of White J made in the appeal proceedings. 9 The difficulty facing Mr Nyoni's application in the form filed is that he seeks leave to appeal against an interlocutory judgment made in an appeal. This issue was considered by the Full Court (Rangiah, Perry and Gleeson JJ) in Spencer v Commonwealth (No 2) (2017) 249 FCR 246. 10 In Spencer, the Full Court observed (at [7]-[13]): 7 The appellate jurisdiction of the Court is conferred under s 24(1) of the FCA Act. Section 24(1)(a) gives the Court jurisdiction to "hear and determine … appeals from judgments of the Court constituted by a single Judge exercising the original jurisdiction of the Court". This is the only provision conferring appellate jurisdiction on the Court in respect of a judgment of a single judge of the Court. It is under this provision that the Court has jurisdiction to hear and determine the applicant's appeal against the judgment of Mortimer J. 8 The application for leave to appeal relies on s 24(1A) which provides that an appeal shall not be brought from "a judgment referred to in s 24(1) that is an interlocutory judgment unless the Court or a judge gives leave to appeal". 9 The interlocutory applications were brought in the course of the appeal against Mortimer J's judgment. It appears that no submission was made before Griffiths J that a single judge lacked the power to determine the interlocutory applications. Accordingly, his Honour's reasons did not expressly state the provision under which he proceeded. However, it is apparent that his Honour must have relied on ss 25(2B) and (2BB) of the FCA Act. 10 Section 25 of the FCA Act has the heading "Exercise of appellate jurisdiction". Section 25(1) provides that: (1) The appellate jurisdiction of the Court shall, subject to this section and to the provisions of any other Act, be exercised by a Full Court. 11 Section 25(2) states that certain applications must be heard and determined by a single judge, subject to two exceptions. Section 25(2B) then sets out other powers of the Court which may be exercised by a single judge as follows: (2B) A single Judge (sitting in Chambers or in open court) or a Full Court may: (a) join or remove a party to an appeal to the Court; or (aa) give summary judgment; or (ab) make an interlocutory order pending, or after, the determination of an appeal to the Court; or (b) make an order by consent disposing of an appeal to the Court (including an order for costs); or (ba) make an order that an appeal to the Court be dismissed for want of prosecution; or (bb) make an order that an appeal to the Court be dismissed for: (i) failure to comply with a direction of the Court; or (ii) failure of the appellant to attend a hearing relating to the appeal; or (bc) vary or set aside an order under paragraph (ab), (ba) or (bb); or (bd) give directions under subsection 37P(2); or (c) give other directions about the conduct of an appeal to the Court, including directions about: (i) the use of written submissions; and (ii) limiting the time for oral argument. 12 Section 25(2BB) then provides: (2BB) An application for the exercise of a power mentioned in subsection (2B) must be heard and determined by a single Judge unless: (a) a Judge directs that the application be heard and determined by a Full Court; or (b) the application is made in a proceeding that has already been assigned to a Full Court and the Full Court considers it is appropriate for it to hear and determine the application. 13 Section 25 of the FCA Act deals with how the Court is to be constituted when exercising its appellate jurisdiction, including the circumstances in which the appellate jurisdiction must or may be exercised by a single judge. In Thomas Borthwick & Sons (Pacific Holdings) Ltd v Trade Practices Commission (1988) 18 FCR 424 at 431, the Full Court held that a single judge hearing and determining an application for leave to appeal under the power conferred by s 25(2) is exercising the appellate jurisdiction of the Court: see also Hu v Giles [2010] FCA 592 at [19]. Similarly, the exercise of a power mentioned in s 25(2B) of the FCA Act by a single judge is within the appellate jurisdiction of the Court. (Emphasis added.) 11 It is clear that in hearing and deciding the interlocutory application for security for costs, White J was exercising appellate jurisdiction and, therefore, a Full Court would have no jurisdiction to hear and determine any appeal from the interlocutory orders made. The matter proceeded with the parties filing submissions on the basis that the application for leave to appeal was an application pursuant to s 25(2B)(bc)of the FCA Act to vary or set aside White J's interlocutory orders.

Applicable Principles 12 By s 25(2B)(ab) of the FCA Act, a single judge or a Full Court may: (ab) make an interlocutory order pending, or after, the determination of an appeal to the Court; or It is further provided in s 25(2B)(bc) that a single judge or a Full Court may: (bc) vary or set aside an order under paragraph (ab), (ba) or (bb); or There is clearly a statutory foundation for the interlocutory orders made by White J and there is also a statutory power (s 25(2B)(bc)) to set aside that order. The question is whether the power should be exercised. 13 It is to be noted that the power to set aside an order would ordinarily be exercised by the Court which made the order: see, for example, Dunstan v Human Rights and Equal Opportunity Commission [2007] FCA 1326 per Gyles J (at [4]). However, given the way in which the application arose, in my opinion it is appropriate that I determine the application. 14 A discretion to vary or set aside an order after it is entered is also conferred by r 39.05 of the Federal Court Rules 2011 (Cth). Unlike r 39.05, which confines the discretion to vary or set aside orders to the discrete circumstances enumerated, the power under s 25(2B)(bc) is not similarly confined. I note that the application of r 39.05 of the Rules in the context of the Court's exercise of appellate jurisdiction is a question which has not been directly addressed: Finch v Heat Group Pty Ltd (No 3) [2016] FCA 102 per Murphy J (at [22]); and Mulholland v Australian Electoral Commission (No 2) [2014] FCA 917 per Mortimer J (at [23]); cf AAI15 v Minister for Immigration and Border Protection [2018] FCA 1110 per Tracey J (at [28]). I have not heard argument on the issue, but I will assume, without deciding, that the principles established by this Court as relevant to an assessment of the exercise of the discretion conferred by r 39.05 of the Rules are apposite in the context of an application brought pursuant to s 25(2B)(bc) of the FCA Act. 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. 17 In this context it is appropriate to have regard to what the High Court (Gummow ACJ, Hayne, Heydon, Crennan and Kiefel JJ) said in Burrell v The Queen (2008) 238 CLR 218 (at [18]-[21]). Their Honours held that the end of a court's powers to consider and determine a controversy cannot depend on whether one party asserts that the court has made some error in the conclusion that it reached. If that were the criterion, they said, there would never be an end to some disputes. Their Honours also held that the court's own belief that it had made an error (taken alone) did not allow it to reopen a decision. Their Honours held that a formal recording of the order of a superior court, such as this court, is 'the point at which the court's power to reconsider the matter is at an end'. 18 It is with these principles borne in mind that I turn to the parties' submissions.

Mr Nyoni's Submissions 19 After recounting the background to these proceedings, Mr Nyoni's submissions record the following: Respondents' Approach Since the inception of the proceedings, Respondents have engaged in deceitful conduct in causing unnecessary delays, stubborn refusal to allow applicant to earn a living, repackaging the Federal Court proceedings in a State Administrative Tribunal, further molesting applicant by hook or crook, further defaming applicant to the world. Pursuant to the Rules applicant filed his notice of appeal on 8 May 2018. In accordance with Practice Note APP2 applicant also file provided the District Registrar with a copy of the Draft Appeal Book Part A pursuant to order of Justice White of 2 July 2018. The Respondents chose not to respond opting instead to disrupt and delay the appeal over and over again. In other acts of madness, Respondents sought to commence a Notice of Contention on 6 July 2018 outside the 21 days mandated by the Rules. All current and proposed actions in the State Administrative Tribunal are manufactured to hinder or stop applicant]s [sic] appeal. At no time have the Respondents ever disputed any of and the substance of Applicant's grounds of appeal and yet Justice White simply and arbitrarily dismisses applicant's opposition, contrary to precedent in identical circumstances. His Honour indicated that "It is not necessary to refer to the authorities in detail" and yet he followed the Respondents' assertions incorporating only all the authorities favourable to the Respondents, while deliberately castigating applicant's substantive and relevant authorities. Yet another gruesome reminder of the Respondents' insatiable appetite for killing applicant's life-saving proceedings is in His Honour's words "I consider that the fact that Mr Nyoni has had frequent access to the courts at unrecompensed expense to respondents and defendants to be a very pertinent matter." Quite outside His power, Justice White is making a personal attack on Applicant, notwithstanding the substantive overarching landmark decisions that ought to put to rest any claims of abusing the Court system. Applicant's major successes against Regulatory Bodies. Local Government and individual conspirators, covers the entire spectrum of Applicant's proceedings referred to by His Honour as "not in public interest." As stated earlier, Respondents have made flourishing careers out of not only defaming Applicant, but demonising him and deliberately negatively labelling him a "person of interest" and lying repeatedly to Courts and Tribunals claiming non-existent, fictitious and shameful privilege and using the judiciary as a vehicle of oppression in their capacities as so called 'officers of the court". There is no evidence whatsoever, that the Respondents are in any shape or form able to countenance a resolution of this matter. Relief Sought The judgment of White J of 28 August 2018 be set aside pursuant to s. 25(2B)(bc) of the FCA 1976. The order of White J of 28 August 2018 be set aside pursuant to s. 25(2B)(bc) of the FCA 1976. Applicant's appeal be expedited to be heard in November 201 [sic] pursuant to the orders of White J of 2 July 20188 [sic]. The Court order that the offending Conditions on Applicant's pharmacy registration on the AHPRA public Register be removed forthwith to allow applicant to work. Pursuant to the Court's accrued jurisdiction. The Court order that Respondents pay applicant a sum of $1 000 000.00 (one million dollars) for lost earnings for the days that have elapsed since the imposition of their 9 false defamatory Conditions. In any event, the Full Court determine the total damages for the Applicant pursuant to his closing submissions in proceeding WAD357 of 2018 of 26 September 2017. The proceeding VR2/2015 being staged by the Respondents at the State Administrative Tribunal be quashed as an abuse of process, for the sole purpose of destroying applicant's appeal Costs be in the cause. Any other orders the Court deems fit. (Citations omitted.)

The Respondents' Submissions 20 The Respondents rely on a decision of the New South Wales Court of Appeal in Fokas v Mansfield (No 3) [2017] NSWCA 315 where Basten, Meagher and Payne JJA said the following about s 46(4) of the Supreme Court Act 1970 (NSW): 22 An application under s 46(4) is not an appeal to the Court: see Supreme Court Act, s 19(2); and Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"), r 51.2 for the definition of "appeal". It has been generally accepted that the applicant for review must show that, in the decision sought to be reviewed, there has been a material error of law or fact, a disregard of some material consideration or the taking into account of an irrelevant consideration, or that the decision was plainly unreasonable and therefore wrong: McGinn v Cranbrook School [2016] NSWCA 226 at [1], [4] and [42]; Transglobal Capital Pty Ltd v Yolamo Pty Ltd [sic] (2004) 60 NSWLR 143; [2004] NSWCA 136 at [4] and [6]. 23 It is possible that the approach to such a review may vary depending on the nature of the issues raised: Tyneside Property Management Pty Ltd v Hammersmith Management Pty Ltd [2014] NSWCA 417 at [3]-[6]; Pi v Zhou [2017] NSWCA 16 at [3]-[6]. Even if a less constrained view were taken of the powers potentially available on such a review, no different conclusion would be reached in relation to the matters addressed below. (Emphasis added.) 21 In relation to the Respondents' reliance on Fokas it is important to note that whilst the power exercised by White J pursuant to s 25(2B)(ab) of the FCA Act is largely comparable to the power exercised by White JA pursuant to s 46(2)(b) of the Supreme Court Act under review in Fokas, s 46(4) of the Supreme Court Act requires that a judgment of a Judge of Appeal exercising the powers of the Court of Appeal be only discharged or varied by the Court of Appeal. Section 25(2B)(ab) is not similarly confined.

Consideration 22 The application before White J concerned an application by the Respondents for an order that Mr Nyoni provide security for their costs on the appeal. After summarising the background which gave rise to the application, his Honour correctly identified the principles applicable to an assessment of security for costs, noting (at [17]): [T]he power to order the provision of security must be exercised judicially and that each case depends on its own circumstances: Bell Wholesale Co Ltd v Gates Export Corporation (1984) 2 FCR 1 at 3-4. The authorities also indicate that a number of matters may be pertinent in the determination of an application for the provision of security for costs in relation to an appeal, including: (a) the prospects of success of the appeal; (b) the risk that an order for costs will not be satisfied; (c) whether the making of an order for security would be oppressive insofar as it would stifle a reasonably arguable claim; (d) whether the impecuniosity of the appellant arises out of the conduct which is the subject of complaint in the relevant proceeding; (e) whether there are any aspects of public interest that weigh in the balance against granting security; and (f) whether there are any other particular discretionary matters peculiar to the circumstances of the case. 23 I note Mr Nyoni takes issue with White J's treatment of the authorities referred to by the parties, however his Honour provided an accurate summation of the principles which can inform the Court's assessment of whether to exercise the discretion conferred by s 56 of the FCA Act to order security for costs. 24 White J considered each of these factors in turn (at [18]-[38]). In respect of the appeal's prospects of success his Honour remarked (at [19]): I consider it inappropriate for the Court to attempt, at this stage, a detailed evaluation of the prospects of success of Mr Nyoni's appeal. I consider it appropriate instead to proceed on the basis that it should not be concluded at this stage that Mr Nyoni's appeal has no prospects of success but nor should it be concluded that the appeal has strong prospects. 25 The Respondents contend that his Honour was wrong in approaching this issue 'without some consideration of the appeal's prospects of success'. However, I do not consider that his Honour's remarks reveal any absence of consideration. Rather, without engaging in a detailed evaluation which would be inappropriate in the context of an application for security for costs, he assessed that it was sufficient to proceed in relation to this discretionary consideration on the basis that the appeal neither had 'no prospects of success' nor 'strong prospects' of success. There is no error in that approach. 26 White J evaluated the risk that Mr Nyoni would not be able to satisfy any adverse order as to costs (at [20]) and the potential that an order for security for costs might stultify the appeal (at [21]-[25]). His Honour next turned to Mr Nyoni's impecuniosity (which was not disputed) and found there to be difficulties in Mr Nyoni's contentions that the Respondents were responsible for his financial position. In assessing considerations of public interest, White J had appropriate regard to Mr Nyoni's history before the Courts and costs orders made against him. His Honour noted that while litigants ought not to be precluded from accessing the courts by reason of their impecuniosity, it is appropriate for the courts, in the public interest, and in the interest of particular respondents, to take account of the persistence with which a specific litigant has brought proceedings of an unmeritorious kind (at [34]). 27 His Honour concluded by observing (at [39]): I am particularly conscious that an order for security in the present case may have a stultifying effect on Mr Nyoni's appeal. This is a significant consideration. However, other considerations lead me to conclude that an order for security is appropriate in the present case. These include the present uncertainty concerning Mr Nyoni's prospects of success on the appeal, the fact that the Court cannot be satisfied that Mr Nyoni's impecuniosity is attributable to the present Respondents, and the persistence with which Mr Nyoni has invoked the jurisdiction of the Courts, on many occasions in an unmeritorious way and, it seeming, without satisfying the adverse costs orders made against him. 28 Applying the threshold of review identified by the Court of Appeal in Fokas, I accept the Respondents' submission that Mr Nyoni has not identified in the judgment of White J: (a) a material error of law or fact; (a) a disregard of some material consideration or the taking into account of an irrelevant consideration; or (b) that the orders are plainly unreasonable and therefore wrong. 29 Rather, I consider Mr Nyoni's submissions record dissatisfaction with the manner in which White J exercised his discretion in ordering security for costs and staying the appeal until such time as the security is given. He seeks to reagitate issues which arose before White J and to which his Honour had due regard. This is contrary to the principle of the finality of litigation. In these circumstances it is not appropriate for an order to be made to vary or set aside the orders of White J. Mr Nyoni's application will be dismissed with costs. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.