Nyoni v Shire of Kellerberrin

1. The written interlocutory application for a stay of paragraph 3 of the orders of Siopis J made on 23 November 2015 is dismissed.
2. The appellant pay the first, second, third and fourth respondents' costs of the written interlocutory application. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

MORTIMER J: 1 Mr Nyoni has appealed from the orders and decision of Siopis J made on 23 November 2015, in which his Honour dismissed Mr Nyoni's claims made under s 52 of the Trade Practices Act 1974 (Cth), as well as his claims made in tort in relation to misfeasance in public office. Siopis J upheld Mr Nyoni's claim in trespass against Mr Mitchell, the fifth respondent, and awarded damages in his favour in the sum of $12,000, comprising general damages of $8,000 and aggravated damages of $4,000. His Honour otherwise dismissed Mr Nyoni's claims of trespass against the second to fourth respondents. 2 The appeal has been referred to me for case management. 3 The first respondent appeared by counsel, as did the second to fourth respondents. The fifth respondent has filed a submitting notice. 4 Mr Nyoni has applied by interlocutory applications, both written and oral, for a number of orders. 5 His written interlocutory application sought a stay of paragraph 3 of Siopis J's orders. By that paragraph, his Honour ordered Mr Nyoni to pay the costs of the first to fourth respondents. 6 On the basis of material submitted and without opposition by the respondents, I gave Mr Nyoni leave to make oral applications for three other orders he had foreshadowed in his submissions ahead of the case management hearing. 7 Mr Nyoni sought leave to raise a new cause of action against the first respondent in relation to what he alleged to be the alteration by the first respondent of the boundaries of the land on which Mr Nyoni had built his house in Kellerberrin. That application was clearly outside the scope of matters which can be raised on appeal and I dismissed it. 8 Mr Nyoni also made an application to "to set aside frivolous and vexatious evidentiary material presented by Respondents". When this was explored with him, Mr Nyoni made it clear this related to complaints about the evidence at trial admitted by Siopis J. Mr Nyoni accepted he could raise this as a ground of appeal, and confirmed that at least in part it was what he intended to be covered by existing ground 3 in his Notice of Appeal. Accordingly, that application was also dismissed, on the basis that Mr Nyoni would give further particulars in his ground of appeal about the evidence he contends the trial judge should have excluded. 9 The third oral application made by Mr Nyoni concerned the proposed joinder of two individuals - Mr Robert Bateman and Ms Theresa Beech, both of whom had roles in the events which led to Mr Nyoni's claims. I dismissed this application. Mr Bateman and Ms Beech were amongst the 26 individuals who, in January 2014, Mr Nyoni sought to add as respondents to his claim at trial. Siopis J granted Mr Nyoni leave to join Mr Mitchell, who became the fifth respondent (and against whom Mr Nyoni succeeded), but otherwise dismissed the application: see Nyoni v Shire of Kellerberrin (No 5) [2014] FCA 204. 10 Further, I note that in other proceedings in this Court, Mr Nyoni had made claims against Ms Beech (amongst other people) in relation to her alleged role in the demise of his pharmacy business in Kellerberrin. These proceedings brought by Mr Nyoni concerned a contract for the sale and purchase of his pharmacy business in Kellerberrin. Part of his case, it seems, was that the purchasing parties were not the "real" purchasers, and the "real" purchaser was Mr Nyoni's foe, the Shire of Kellerberrin. Gilmour J dismissed those claims (including those against Ms Beech and the conspiracy allegation concerning the Shire being the true purchaser of the property) as without any reasonable prospects of success see: Nyoni v Chee Koon Hee (No 4) [2013] FCA 948. His Honour said (at [41]): The applicant's cause of action in conspiracy has no reasonable prospects of success as a matter of law. The substance of the applicant's claim is that these respondents have acted in concert to destroy the applicant's business in order to further their business interests either in competing to supply pharmaceuticals in Kellerberrin, or to acquire the pharmacy. The "conspiracy" asserted by the applicant is one predominantly motivated by self-interest on the part of these respondents rather than the predominant purpose of injuring the applicant. As the applicant pleads at [13] of his statement of claim, it was to promote a sale of the applicant's business "by hook or crook". The applicant, however, has not alleged that he sold the land or business at an under-value or at a value lowered because of this asserted conduct. Nor did he tender any evidence of loss or damage allegedly suffered under any head of claim. Indeed, he conceded in oral argument that he entered into those contracts willingly. As I mentioned, his real complaint is that the real purchaser under those contracts is the Shire of Kellerberrin. 11 Gilmour J observed that Mr Nyoni had put the respondents to the expense of defending claims which were either hopeless or devoid of any reasonable prospects of success, and ordered indemnity costs against Mr Nyoni. 12 Mr Nyoni sought leave to appeal from Gilmour J's decision, which was denied: see Nyoni v Chee Koon Hee (No 2) [2014] FCA 83. Mr Nyoni has had his opportunities to take action against Ms Beech and Mr Bateman. There was in any event no possible utility in the circumstances of this matter in joining to an appeal persons who were not parties to the proceedings below.