Nyoni v Shire of Kellerberrin

REASONS FOR JUDGMENT 1 In a previous judgment (Nyoni v Shire of Kellerberrin (No 2) [2012] FCA 1477) I determined that, in light of Mr Nyoni's difficulty in formulating a complying statement of claim, it was appropriate if this matter was to get to trial, that it proceed by way of a statement of issues followed by a statement of facts and contentions. In furtherance of that approach, on 9 September 2013, I circulated to the parties a draft statement of issues which appeared to me to have emerged from Mr Nyoni's attempts to formulate a statement of claim, and in respect of which there was a sufficient foundation made out to warrant the issue proceeding to trial. 2 I invited the parties to respond to the draft statement of issues. Each of the parties did so. Mr Nyoni responded with a document dated 3 October 2013 which provided further detail in support of his claims identified in the draft statement of issues. I did not have in mind that the parties should respond to the draft statement of issues in this way at this time, because, in due course, I will make directions for the filing and serving of statements of facts and contentions. However, I infer from his document that Mr Nyoni agrees that each of the issues identified in the draft statement of issues should go to trial. The first respondent also responded by a document dated 2 October 2013, which agreed with the issues as formulated in the draft statement of issues dated 9 September 2013, but also included some additional issues. I agree that the additional issues identified are also issues which should be tried. Those additional issues are the issues identified at paras 2, 4, 6 and 11 of the first respondent's response. 3 The second, third and fourth respondents by a document dated 1 October 2013 also responded to the draft statement of issues. They also agreed that the issues as identified in the draft statement of issues dated 9 September 2013 should be tried. These respondents also nominated additional issues for trial. Those additional issues are referred to in paras 5, 10 and 22 of their response document. I agree those additional issues should be tried. These respondents also made some comments about the contents of the minute of the Shire Council meeting which are noted. 4 Accordingly, on the basis of the responses of the parties, I will formulate the issues for trial in terms of the draft statement of issues, as supplemented by the responses of the respondents. 5 As to the question of discovery, I asked each of the parties to propose categories of documents in respect of which discovery should be given. 6 Each of the parties responded by nominating certain categories of documents. However, having perused the responses from each of the parties, I have come to the view that the appropriate way to proceed in this case is to order standard discovery under r 20.14 of the Federal Court Rules 2011. 7 My reasons for coming to that view are the following. 8 First, there are a number of issues in respect of which Mr Nyoni makes allegations about matters peculiarly within the knowledge of the respondents. I mention just one such issue, but there are others (for example, issue 3; and the trading status of the first respondent). It is a major contention of Mr Nyoni that in making derogatory statements about his business and engaging in the other conduct complained of, it was the intention of the respondents to harm his business and to promote a rival pharmacy business. It appeared to me that there was some difficulty in seeking to foreshadow all the potential categories of documents which might be relevant to the issues which raise matters within the particular knowledge of the respondents, and that it would be more appropriate and expeditious if I ordered standard discovery and left it to the solicitors of the respondents, acting in accordance with their duties, to identify the appropriate documents. 9 Secondly, save for the comments I have just made, the categories which were nominated by the parties approximated standard discovery, in any event. 10 In those circumstances, I will order that the parties give standard discovery. I will hear from the parties as to the appropriate time frames for the giving of that discovery. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.