FEDERAL COURT OF AUSTRALIA
Nyoni v Chee Koon Hee (No 2) [2013] FCA 703
Citation: Nyoni v Chee Koon Hee (No 2) [2013] FCA 703 Parties: EMSON NYONI v CHEE KOON HEE & OTHERS File number: WAD 154 of 2013 Judge: GILMOUR J Date of judgment: 22 July 2013 Legislation: Federal Court of Australia Act 1976 (Cth) s 37M(3)
Federal Court Rules 2011 (Cth) rr 8.05(1), 8.21
Federal Court Rules 1979 (Cth) O 13, r 2
Limitation Act 2005 (WA) s 15Cases cited: Australian Competition & Consumer Commission v Jutsen (No 2) [2010] FCA 982
Bishop v Bishop [1901] P 325
Bowen Energy Ltd v 2KD Drilling Pty Ltd [2012] FCA 275
Gumina v Williams (No 1) (1990) 3 WAR 342
Harris v Warre (1879) 4 CPD 125
Kone Elevators Pty Ltd v Elex Pty Ltd [2000] FCA 711
Manolakis v Carter [2008] FCAFC 183
Medich v Bentley-Smythe Pty Ltd [2010] FCA 494
Nyoni v Chee Koon Hee [2013] FCA 701
SZNFR v Minister for Immigration and Citizenship [2009] FCA 851Taylor v Jecks (1993) 10 WAR 309
Underdown v Secretary, Department of Education, Employment and Workplace Relations [2009] FCA 965
Date of hearing: 2 July 2013 Place: Perth Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 25 Counsel for the Applicant: The applicant appeared in person Counsel for the 1st, 2nd & 7th Respondents: Mr A Aristei Solicitor for the 1st, 2nd & 7th Respondents: IRDI Legal Counsel for the 3rd, 4th & 5th Respondents: Mr P Graham Solicitor for the 3rd, 4th & 5th Respondents: Jarman McKenna Counsel for the 6th Respondent: Ms K M McNally Solicitor for the 6th Respondent: Clayton Utz Counsel for the 8th Respondent: Mr S Green Solicitor for the 8th Respondent: Havilah Legal Counsel for the 9th, 10th & 12th Respondents: Ms K E McDonald Solicitor for the 9th, 10th & 12th Respondents: State Solicitor's Office Counsel for the 11th Respondent : Mr S D Hubbard Solicitor for the 11th Respondent: DLA Piper Australia
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 154 of 2013
BETWEEN: EMSON NYONI
Applicant
AND: CHEE KOON HEE & OTHERS
Respondents
JUDGE:
GILMOUR J
DATE OF ORDER:
2 JULY 2013
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1.The applicant’s application for leave to amend his originating application is dismissed.
2.Costs be reserved
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 154 of 2013
BETWEEN: EMSON NYONI
Applicant
AND: CHEE KOON HEE & OTHERS
Respondents
JUDGE:
GILMOUR J
DATE:
22 JULY 2013
PLACE:
PERTH
REASONS FOR JUDGMENT
The applicant applied for leave to amend his originating application dated 20 May 2013, in terms of a proposed amended originating application filed by…
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- AGLC
- Nyoni v Chee Koon Hee (No 2) [2013] FCA 703
- Case
- [2013] FCA 703
- Decision Date
CaseChat Overview and Summary
In the case of Nyoni v Chee Koon Hee (No 2), the applicant, Mr Nyoni, sought leave to amend his statement of claim to include defamation claims. The application was contested by the respondents. The matter was heard in the Federal Court of Australia. The central issue before the court was whether Mr Nyoni should be granted leave to amend his statement of claim to include defamation claims, and whether such an amendment would comply with the relevant procedural rules and promote the overarching purpose of the civil practice and procedure provisions of the Federal Court of Australia Act 1976.
The court examined the nature of the proposed amendment and the accompanying affidavit. The affidavit was found to be assertive and difficult to comprehend, with many of the allegations being imprecise, vague, and ambiguous. The court noted that the affidavit did not provide particulars of the defamatory statements, the nature of the imputations, the timing, or the recipients. The court concluded that neither the proposed amendment nor the affidavit assisted in correcting defects that would prevent the court from determining the real questions raised by the proceeding or making a claim that arises out of facts already pleaded. Furthermore, the court found that allowing the amendment would cause substantial prejudice or injustice, and it would be contrary to the overarching principle defined in s 37M of the FCA Act.
In light of the above, the court dismissed the application for leave to amend the statement of claim. The court found that the proposed amendment would not facilitate the just resolution of the dispute according to law and as quickly, inexpensively, and efficiently as possible. The court also noted that the applicant would be required to pay the respondents' costs but reserved the question of the nature and extent of those costs to be determined in a separate judgment.
The court examined the nature of the proposed amendment and the accompanying affidavit. The affidavit was found to be assertive and difficult to comprehend, with many of the allegations being imprecise, vague, and ambiguous. The court noted that the affidavit did not provide particulars of the defamatory statements, the nature of the imputations, the timing, or the recipients. The court concluded that neither the proposed amendment nor the affidavit assisted in correcting defects that would prevent the court from determining the real questions raised by the proceeding or making a claim that arises out of facts already pleaded. Furthermore, the court found that allowing the amendment would cause substantial prejudice or injustice, and it would be contrary to the overarching principle defined in s 37M of the FCA Act.
In light of the above, the court dismissed the application for leave to amend the statement of claim. The court found that the proposed amendment would not facilitate the just resolution of the dispute according to law and as quickly, inexpensively, and efficiently as possible. The court also noted that the applicant would be required to pay the respondents' costs but reserved the question of the nature and extent of those costs to be determined in a separate judgment.
Orders
Orders of the court
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Background
Background to the litigation
However, in relation to r 8.21, the power to grant or refuse leave “must”, by virtue of s 37M(3) of the Federal Court of Australia Act 1976 (Cth) (the FCA Act), be exercised in the way that best promotes the overarching purpose of the civil practice and procedure provisions of the FCA Act and the Rules: Bowen Energy Ltd v 2KD Drilling Pty Ltd [2012] FCA 275 at [8]. That purpose is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible: s 37M of the FCA Act. The position was the same in respect to the precursor to r 8.21: Australian Competition & Consumer Commission v Jutsen (No 2) [2010] FCA 982 at [12]. Background I delivered judgment in this proceeding recently in respect to Mr Nyoni’s application for injunctive relief Nyoni v Chee Koon Hee [2013] FCA 701. The background to the proceeding is set out at length there. These reasons should be read together with my earlier reasons. As I explained in my earlier reasons, Mr Nyoni’s claims are, in the legal sense, incoherent and do not establish material facts disclosing the alleged causes of action. That being the case, his proposal to bring defamation within the accrued jurisdiction of the Court fails at the first hurdle. His supporting affidavit is obscure in its terms. It is assertive in nature and difficult to comprehend. For example, para [4], which is the introduction to the affidavit, is in the following terms. The difficulties to which I have referred are self-evident: 4. Introduction:(a).The matrix of this current proceeding is proceeding WAD316/2010 where three of the respondents numbers 3, 4 and 11 are directly involved in WAD 316/2010. In this proceeding, WAD 154/2013, respondents 3, 4, 5 and 11 engulfed respondents 1, 2, 6, 7, 8, 9, 10 and 12 as discussed below. Respondent 5 has, at all material times deputised .respondents 3 and 4, before becoming the CEO of respondent 11 in early 2013. (b).Respondents 1 and 2 are the disciples of respondents 3, 4 and 11, who together hatched the plot leading to these proceedings. Respondent 7 is the means used to purportedly attempt to purchase my property at 92 Massingham Street, Kellerberrin, without disclosing identities or authenticities behind the scheme by signatory respondent 1 and 2.(c).Respondent 6 is an appointee of respondent 11, and works under the auspices of respondents 3, 4 and 11, at all material times. Respondent 6 has been using his position as GP to infiltrate his clients, during clinical consultations, to degrade and defame me, and to collude with respondents 1, 2, 3, 4, 5 in destabilising my pharmacy business together with respondent 11 and 12. (d).Respondent 8 with the assistance of respondents 3. 4 and 5 forged documents to procure a false debt against me and went further to generate multiple proceedings against me on that false basis. (e).Respondent 10 replaced Robert Bateman, a former Health Department inspector, also implicated with respondent 3 in WAD316/2010. Respondent 10 was in charge of fabricating and falsifying evidence against me to procure a criminal conviction with the knowledge and assistance of respondents 3, 4, 5, 11 and 12. As a result, a recommendation was passed on to respondent 9, to revoke my Schedule 8 Pharmaceutical Licence. (f)Respondent 12 is central to all false allegations made against me to the Health Department, former Pharmaceutical Council of Western Australia and other Regulatory Authorities. Respondent 12 is employed by the Health Department WA under respondent 11, directed by respondents 3, 4, 5 and 6 at all material times.Transcribed without amendment.Substitution of the affidavit in place of the statement of claim
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Many of the allegations are imprecise, vague and ambiguous without any particulars of what was stated or published, what the nature of the imputations were, when it was said, to whom it was said or published. CONCLUSION Neither the proposed amendment nor the affidavit assist to correct a defect or error that would otherwise prevent the Court from determining the real questions raised by the proceeding or make a claim that arises out of facts already pleaded: r 8.21(1)(a) and (g) of the Rules. To the extent the applicant relies on the affidavit as indicative of the facts on which he intends to rely, the amendment is futile and would cause substantial prejudice or injustice which could not be compensated for given the unsupported scandalous nature of many of the allegations, and it would be contrary to the "overarching principle" defined in s 37M of the FCA Act. Accordingly, the application for leave should be dismissed. However, although the applicant will require to pay the several respondents or groups of respondents’ costs, I will reserve the question of costs and the nature of those costs and will determine these in a separate judgment.
Ratio Decidendi
Legal Principle Established
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