Nyoni v Shire of Kellerberrin

1. The objections to competency be upheld.
2. The application for leave to appeal be dismissed.
3. The appellant do pay the costs of the first and second respondents. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

COLVIN J: 1 Mr Emson Nyoni brought a claim against the Shire of Kellerberrin and Mr Darren Friend for damages. The claim was based on a number of alternative causes of action. Mr Friend was the chief executive officer of the Shire at the time of the events the subject of the claim. After a final hearing before Siopis J, the claim was dismissed. Mr Nyoni brought an appeal which was successful, by majority, as to the part of his claim that was based on misfeasance in public office. The matter was remitted to the primary judge to assess damages, 'including aggravated and or exemplary damages': Nyoni v Shire of Kellerberrin [2017] FCAFC 59; (2017) 248 FCR 311 at [118]-[119]. In upholding the appeal the majority in the Full Court expressed the view that the primary judge should be able to assess the damages without the need for further submissions. 2 Siopis J retired from the Court before damages were assessed on the remitter. The matter came before Barker J who convened a case management hearing at which his Honour directed that the parties file submissions prior to a hearing at which damages would be assessed. Mr Nyoni then informed the Court that he would not participate in the hearing because of an application he had brought in the High Court to review the procedural orders by Barker J concerning the filing of submissions. 3 Barker J then held a hearing in the absence of Mr Nyoni to undertake the assessment and awarded him damages in the sum of $30,000 comprising $15,000 in general damages, $5,000 aggravated damages and $10,000 exemplary damages: Nyoni v Shire of Kellerberrin (No 10) [2018] FCA 1576. 4 On 9 November 2018, Mr Nyoni filed a notice of appeal against the decision of Barker J. The notice states 10 grounds and seeks an award of damages of $100 million. 5 The last day for commencement of an appeal against the decision of the Full Court was 9 November 2018. The notice of appeal was not served until 13 November 2018. An appeal is not commenced until it is both filed and served: Federal Court Rules 2011 (Cth) r 36.03 and r 1.51. So, the appeal was commenced a few days out of time. 6 The Shire and Mr Friend have each objected to the competency of the appeal. They say that the appeal is out of time, that there is no explanation for the delay and the appeal grounds lack merit. 7 At an earlier hearing I directed that the notice of appeal be treated as an application for an extension of time to appeal. The objections to competency are based on the claim that leave was not sought and should be refused. Therefore, the competency of the appeal turns upon whether there should be an extension of time. 8 Mr Nyoni provides no affidavit explaining his delay in effecting service. He acts on his own behalf. Therefore, due allowance ought be made for a possible lack of familiarity with the process, noting that Mr Nyoni has been involved in proceedings where issues have arisen concerning the commencement by him of an appeal within time: Nyoni v Chee Koon Hee (No 2) [2014] FCA 83 at [30]. On the hearing of the application Mr Nyoni explained that there had been a delay in the Registry issuing the appeal notice in a form that it might be served. He said that when it was available he took steps to effect service. It is not possible to test this explanation because it was raised informally at the hearing. However for reasons which I set out below it seems to me that the present application is not to be determined based upon any explanation that might be forthcoming as to the short delay in effecting service. 9 The principles to be applied on an application for an extension of time in which to appeal are well established. The Court must determine where the best interests of justice lie and in doing so proposed grounds should be evaluated at a reasonably impressionistic level: Singh v Minister for Immigration and Border Protection [2017] FCAFC 195 at [21]; Guo v Minister for Immigration and Border Protection [2018] FCAFC 34 at [27]; and Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516 at [9]. 10 Rule 36.05 of the Federal Court Rules provides that the affidavit in support of the application for an extension must state why the appeal was not filed within time. However, the Court may dispense with this procedural requirement in the interests of justice. Time periods for appeals are important and not to be ignored. They are part of the means by which finality, an important aspect of the interests of justice, is delivered. Therefore, it is well established that the discretion on an application for an extension of time in which to appeal is properly guided, amongst other things, by whether there is an acceptable explanation for delay: Parker v The Queen [2002] FCAFC 133 at [6] adopting with approval the statement of Wilcox J in Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; (1984) 3 FCR 344 at 348-349. However, it must be born in mind that the discretion is to be exercised in the interests of justice. The delay here is very short. The appeal was lodged with the Court in time. It is understandable that a self-represented litigant may not be aware that service also had to be effected within the time specified for the commencement of the appeal. If the issue of an explanation was a significant matter to be weighed because there was a longer delay then it may have been appropriate to consider whether leave should have been given for the explanation offered by Mr Nyoni to be the subject of formal evidence. However, no prejudice has been advanced for the Shire or Mr Friend that is said to have been occasioned by the very sort delay. In those circumstances, the key question on the application for an extension concerns the merits of the grounds. In that regard, the interests of justice are not served by allowing an extension of time to advance grounds that are hopeless. 11 Ground 1 claims that there was error in not following the orders of the Full Court. Those orders provided for assessment of damages on remitter. There was an expectation at the time of those orders that the matter could be dealt with by Siopis J without submissions. As events turned out that expectation was not fulfilled. There was no error in Barker J directing the filing of submissions. The view expressed by the Full Court that the matter might be dealt with by Siopis J without submissions did not prevent Barker J from making a procedural order for submissions. Indeed, as Barker J was not the judge who originally heard the matter a direction for the filing of submissions was appropriate. The ground also seeks to complain about what are said to be assertions raised by counsel for the respondents in the submissions that Mr Nyoni did not suffer loss and damage. Complaints of that kind do not demonstrate reviewable error. There must be error in the reasons of the primary judge not the submissions advanced by the parties. These complaints raise no arguable ground of appeal. 12 Ground 2 alleges that the primary judge did not follow orders of the High Court dismissing an application by the respondents for leave to appeal against the decision of the Full Court. The only effect of the order of the High Court was that the decision of the Full Court remained unaffected. There is no merit in this ground. 13 Ground 3 alleges that the primary judge denied Mr Nyoni damages for misfeasance in public office. The premise for the ground is plainly wrong because the primary judge awarded such damages. 14 Ground 4 alleges that the primary judge erred in failing to award damages for defamation. This ground misapprehends the reasoning of the Full Court. The references to defamation were only by way of analogy and did not introduce a separate basis for a claim for damages. 15 Ground 5 alleges error in failing to award damages for malicious falsehood and targeted malice. The claim of malicious falsehood was dismissed by Siopis J and that finding was upheld by the Full Court. 16 As to targeted malice this was the basis on which the appeal in respect of malicious falsehood was upheld. It is reflected in the award of damages by Barker J. It is not a separate basis for Mr Nyoni's claim that fell for consideration on remitter. 17 Ground 6 is a general assertion of error by overturing the Full Court and High Court. There is no merit in the ground. Barker J gave effect to the orders of those courts. 18 Ground 7 alleges that the primary judge denied Mr Nyoni any damages and sought to punish him. This claim is plainly without foundation. 19 Ground 8 alleges that the primary judge denied Mr Nyoni aggravated damages and entertained fresh issues. The first part of that allegation is unsustainable because such an award was made by the primary judge. The second part is not particularised. There is no evident basis for this allegation. Therefore it is without merit. 20 Ground 9 alleges that Mr Nyoni was denied exemplary damages. This is plainly without foundation. Barker J made an award of exemplary damages in favour of Mr Nyoni. 21 Ground 10 alleges actual or apprehended bias by Barker J. The complaint is based upon a claim that Barker J refused to follow the Full Court. There is no basis for this general claim. There is also a claim that Barker J 'piled up' alleged costs. His Honour determined that there should be a stay of the order awarding damages and that the question of costs would be dealt with on the papers. Issues arise as to whether the award of damages should be payable having regard to the final position in relation to costs. There is no foundation for the claim of bias in the matters referred to in the notice of appeal. 22 In oral submissions, the thrust of the complaint raised by Mr Nyoni was that there was an alleged departure by Barker J from the type of assessment that was required by the Full Court and the High Court. Mr Nyoni was not specific about the nature of such a departure. He also referred to a letter that was not before the Court as a matter that had, in effect, misdirected the process. However, the primary judge quoted directly from the reasons of the majority of the Full Court as to the assessment of damages that was required. It was an assessment of damages for misfeasance in public office. The primary judge undertook an assessment of those damages on the basis of all the circumstances as outlined in the reasons. None of the grounds challenge the correctness of the description of the circumstances by the primary judge. 23 Finally, I note that the quantum of damages for which Mr Nyoni wishes to contend in the appeal is fanciful. It is an abuse of process to use the procedures of the court to contend for an amount of damages which is extravagant in the sense that it is unsupportable on any view of the law and the facts in issue in the proceedings. It is apparent that Mr Nyoni seeks to advance the appeal for the purpose of contending that there should have been an assessment of damages in an amount of $100 million. An appeal for that purpose is an abuse: Attorney-General (NSW) v Viavattene [2014] NSWSC 327 at [164], a passage accepted on appeal by Leeming JA (Beazley P and Basten JA agreeing) in Viavattene v Attorney-General (NSW) [2015] NSWCA 44 at [72]. 24 For all these reasons, there is no merit in the appeal and the application for an extension of time is doomed to fail. The objections to competency should be upheld. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Colvin.