Nyoni v Chee Koon Hee (No 3)

[2013] FCA 726

FEDERAL COURT OF AUSTRALIA

Nyoni v Chee Koon Hee (No 3) [2013] FCA 726

Citation:		Nyoni v Chee Koon Hee (No 3) [2013] FCA 726
Parties:		EMSON NYONI  v CHEE KOON HEE & OTHERS
File number:		WAD 154 of 2013
Judge:		GILMOUR J
Date of judgment:		24 July 2013
Cases cited:		Nyoni v Chee Koon Hee [2013] FCA 701
Date of hearing:	2 July 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 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

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:	24 JULY 2013
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.The applicant pay the costs of the:

(a)first, second and seventh respondents;

(b)third, fourth and fifth respondents;

(c)sixth respondent;

(d)eighth respondent;

(e)ninth, tenth and twelfth respondents, and

(f)eleventh respondent

in relation to the interlocutory application dated 28 June 2013 to amend the originating application. 

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:	24 JULY 2013
PLACE:	PERTH

REASONS FOR JUDGMENT

1. I made orders on 2 July 2013 in relation to the applicant’s interlocutory application dated 28 June 2013 to amend the originating application.  The application was dismissed.  Written reasons for judgment were published on 22 July 2013.  The question of costs had been reserved to be dealt with in supplementary written reasons.  These are those reasons.

2. The first, second, seventh, ninth, tenth and twelfth respondents sought indemnity costs payable forthwith.  The third, fourth and fifth respondents sought costs.  The sixth respondent sought costs to be fixed and payable forthwith.  The eighth and eleventh respondents sought costs payable forthwith.

3. I have set out the principles concerning indemnity costs and payment of costs forthwith in Nyoni v Chee Koon Hee [2013] FCA 701.

4. On the last occasion this matter was before me I invited Mr Nyoni to attempt to retain solicitors to advise him in relation to this present application.  Mr Nyoni informed the Court that he had had difficulty retaining solicitors.  I will accept this to be a fact.  In those circumstances, I am not prepared to order indemnity costs.

5. It would, I think, be harsh to impose indemnity costs, even where, had he been able to obtain legal advice, it is likely that the application, at least in the terms and basis upon which it was brought, would not have been advanced  He was unable to source such advice.

6. Nor do I think there is a basis for making an order that costs be paid forthwith.  Otherwise this would become the norm in relation to any interlocutory application made in the course of a proceeding.  I have no relevant evidence before me to enable me to fix costs.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.

Associate:

Dated:       24 July 2013