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

1. 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 made by Mr Nyoni against the 12 respondents on the basis that the claims had no reasonable prospects of success (Nyoni v Chee Koon Hee (No 4) [2013] FCA 948). The decision was handed down on 18 September 2013. Mr Nyoni filed his notice of appeal on 9 October 2013.

2. On 22 October 2013, the third, fourth and fifth respondents filed a notice of objection to competency in respect of Mr Nyoni’s appeal and the other respondents followed suit.  The objections to competency all make the same point, namely, that the decision of Gilmour J was interlocutory, that no leave to appeal from that decision has been obtained and so the appeal was incompetent.  I have been told from the bar table that shortly after the solicitors for some of the respondents were served with the notice of appeal, they advised Mr Nyoni that he needed to obtain leave to appeal before he could file his notice of appeal.

3. Mr Nyoni has advised me that he has paid a filing fee in relation to the notice of appeal.  Counsel for the respondents, however, have submitted that if I was minded to order that Mr Nyoni’s notice of appeal be treated as an application for leave to appeal, that the application for leave to appeal should not be listed before a Full Court on the basis that the application for leave to appeal and the appeal be heard at the same time.  In my view, that is the appropriate course to adopt.

4. The judgment of Gilmour J is interlocutory in nature.  Therefore, Mr Nyoni was required to obtain leave to appeal and leave was not obtained.  It follows that the notice of appeal is incompetent.

5. Because Mr Nyoni has paid a filing fee in relation to the notice of appeal, I am content to order that the notice of appeal be treated as an application for leave to appeal. However, the consequence for Mr Nyoni of Gilmour J’s judgment being interlocutory is that Mr Nyoni was pursuant to r 35.13 of the Federal Court Rules 2011, required to file the application for leave to appeal within 14 days of the delivery of the judgment.  As mentioned, Mr Nyoni filed his notice of appeal on 9 October 2013.  Therefore, insofar as Mr Nyoni’s application is to be treated as an application for leave to appeal, it has been filed out of time.  It will, therefore, be necessary for Mr Nyoni to file a further application applying for an extension of time within which to bring his application for leave to appeal against the decision of Gilmour J.

6. It will be up to Mr Nyoni as to whether and when he makes an application for an extension of time.  However, if Mr Nyoni has not filed an application for an extension of time by the time of the hearing of the application for leave to appeal, undoubtedly the point will be taken against him, with the likely consequence that Mr Nyoni’s application for leave to appeal would be dismissed on that ground.

7. I will order that this matter be removed from the callover list.  The matter will then be returned to the Registry so that it can be allocated to a docket judge to hear the application for leave to appeal in due course.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.

Associate:

Dated:       29 October 2013