Nyoni v Chee Koon Hee - [2013] FCA 1120

FEDERAL COURT OF AUSTRALIA
Nyoni v Chee Koon Hee [2013] FCA 1120

Citation: Nyoni v Chee Koon Hee [2013] FCA 1120

Parties: EMSON NYONI v CHEE KOON HEE, DEVESH SHETH, FRANK PECZKA, DARREN FRIEND, RAYMOND GRIFFITHS, ANDREW VAN BALLEGOOYEN, CK CHEE PTY LTD, ALLEASING PTY LTD, CHIEF EXECUTIVE OFFICER OF HEALTH WA, JULIAN MURPHY, SHIRE OF KELLERBERRIN and THERESA BEECH

File number(s): WAD 382 of 2013

Judge(s): SIOPIS J

Date of judgment: 23 October 2013

Date of hearing: 23 October 2013

Place: Perth

Division: GENERAL DIVISION

Category: No Catchwords

Number of paragraphs: 7

Counsel for the Applicant: The Applicant appeared in person.

Counsel for the First, Second and Seventh Respondents:
Mr A Aristei

Solicitor for the First, Second and Seventh Respondents:
IRDI Legal

Counsel for the Third, Fourth and Fifth Respondents:
Mr P Graham

Solicitor for the Third, Fourth and Fifth Respondents:
Jarman McKenna

Counsel for the Sixth Respondent:
Ms KM McNally

Solicitor for the Sixth Respondent:
Clayton Utz

Counsel for the Eighth Respondent:
Mr S Green

Solicitor for the Eighth Respondent:
Havilah Legal

Counsel for the Ninth, Tenth and Twelfth Respondents:
Ms KE McDonald

Solicitor for the Ninth, Tenth and Twelfth Respondents:
State Solicitor’s Office

Counsel for the Eleventh Respondent:
Mr SD Hubbard

Solicitor for the Eleventh Respondent:
DLA Piper Australia

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

WAD 382 of 2013

BETWEEN:
EMSON NYONI
Applicant

AND:
CHEE KOON HEE
First Respondent

DEVESH SHETH
Second Respondent

FRANK PECZKA
Third Respondent

DARREN FRIEND
Fourth Respondent

RAYMOND GRIFFITHS
Fifth Respondent

ANDREW VAN BALLEGOOYEN
Sixth Respondent

CK CHEE PTY LTD
Seventh Respondent

ALLEASING PTY LTD
Eighth Respondent

CHIEF EXECUTIVE OFFICER OF HEALTH WA
Ninth Respondent

JULIAN MURPHY
Tenth Respondent

SHIRE OF KELLERBERRIN
Eleventh Respondent

THERESA BEECH
Twelfth Respondent

JUDGE:

SIOPIS J

DATE OF ORDER:

23 OCTOBER 2013

WHERE MADE:

PERTH

THE COURT ORDERS THAT:
1.The notice of appeal be treated as an application for leave to appeal.
2.The application for leave to appeal is to be allocated to a docket judge.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

WAD 382 of 2013

BETWEEN:
EMSON NYONI
Applicant

AND:
CHEE KOON HEE
First Respondent

DEVESH SHETH
Second Respondent

FRANK PECZKA
Third Respondent

DARREN FRIEND
Fourth Respondent

RAYMOND GRIFFITHS
Fifth Respondent

ANDREW VAN BALLEGOOYEN
Sixth Respondent

CK CHEE PTY LTD
Seventh Respondent

ALLEASING PTY LTD
Eighth Respondent

CHIEF EXECUTIVE OFFICER OF HEALTH WA
Ninth Respondent

JULIAN MURPHY
Tenth Respondent

SHIRE OF KELLERBERRIN
Eleventh Respondent

THERESA BEECH
Twelfth Respondent

JUDGE:

SIOPIS J

DATE:

23 OCTOBER 2013

PLACE:

PERTH

REASONS FOR JUDGMENT

There is before me in the callover list for the appeal sittings for the Full Court for February and March 2014, a notice of appeal filed by Mr Nyoni. The notice of appeal purports to appeal from the decision of Gilmour J which dismissed, pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth), the claims…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Nyoni v Chee Koon Hee

Details

AGLC: Nyoni v Chee Koon Hee [2013] FCA 1120
Case: [2013] FCA 1120
Decision Date

CaseChat Overview and Summary

In the matter of Nyoni v Chee Koon Hee, the applicant, Emson Nyoni, sought to appeal a decision of Gilmour J which dismissed his claims against twelve respondents. The dismissal was based on the finding that the claims had no reasonable prospects of success. The respondents objected to the competency of the appeal on the grounds that the decision of Gilmour J was interlocutory and that no leave to appeal had been obtained. The court found that the decision of Gilmour J was indeed interlocutory, and thus, the applicant was required to obtain leave to appeal before proceeding with the appeal. However, leave was not obtained, making the appeal incompetent.

The court considered the procedural aspect of the appeal and noted that the applicant had filed the notice of appeal after the 14-day period allowed for filing an application for leave to appeal. The court also acknowledged that the applicant had paid a filing fee in relation to the notice of appeal. The court determined that the notice of appeal should be treated as an application for leave to appeal. However, the applicant would need to file a further application for an extension of time if he wished to proceed with the appeal against the decision of Gilmour J. The court removed the matter from the callover list and directed that it be returned to the Registry for allocation to a docket judge to hear the application for leave to appeal in due course.

The court ordered that the notice of appeal be treated as an application for leave to appeal and that the application be allocated to a docket judge. The applicant must file an application for an extension of time if he wishes to proceed with the appeal against the decision of Gilmour J. Failure to do so may result in the dismissal of the application for leave to appeal. The matter was removed from the callover list and returned to the Registry for further allocation.

Orders