Nyoni v Chee Koon Hee (No 4)

[2013] FCA 948

FEDERAL COURT OF AUSTRALIA

Nyoni v Chee Koon Hee (No 4) [2013] FCA 948

Citation:		Nyoni v Chee Koon Hee (No 4) [2013] FCA 948
Parties:		EMSON NYONI v CHEE KOON HEE AND OTHERS
File number:		WAD 154 of 2013
Judge:		GILMOUR J
Date of judgment:		18 September 2013
Catchwords:		PRACTICE AND PROCEDURE – application under s 31A of the Federal Court of Australia Act 1976 (Cth) – allegations of conspiracy – whether the Court has jurisdiction – whether, as against one respondent, judgment should be given under r 26.01 (d) of the Federal Court Rule 2011 (Cth) for being an abuse of process
Legislation:		Federal Court of Australia Act 1976 (Cth) s 31A Poisons Act 1964 (WA) ss 5, 23(2), 24, 62(2)(ha) Poisons Regulations 1965 (WA) reg 43A Trade Practices Act 1974 (Cth) s 52 Competition and Consumer Act 2010 (Cth) Sch 2 ss 18, 22 Judiciary Act 1903 (Cth) s 39B Federal Court Rules 2011 (Cth) r 26.01(d) Local Court Act 2007 (NSW) ss 39(1), s 40(1) Magistrates Court (Civil Proceedings) Act 2004 (WA) s 40(1)
Cases cited:		Australian Health Insurance Associated Ltd (formerly Voluntary Health Insurance Association of Australia Ltd) v Esso Australia Pty Ltd (1993) 116 ALR 253 Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 70 IPR 146 Broadbent v Medical Board of Queensland (2011) 195 FCR 438 Cirillo v Consolidated Press Property Ltd (formerly known as Citicorp Australia Limited) (No 2) [2007] FCA 179 Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225 Commonwealth Bank of Australia (ACN 123 123 124) v ACN 000 247 601 Pty Ltd (in liq) (Formerly Stanley Thompson Valuers Pty Ltd) [2006] FCA 1416 Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission (2007) 157 FCR 260 Croker v Commissioner of Taxation [2006] FCA 372 Direct Factory Outlets Pty Ltd v Westfield Management Ltd (2003) 132 FCR 428 Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 Gersten v Minister for Immigration & Multicultural Affairs [2001] FCA 260 Glass v State of New South Wales (1994) 52 FCR 336 Hamod v New South Wales (2002) 188 ALR 659 Hughes v Western Australian Cricket Association (Inc) (1986) 19 FCR 10 Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FCR 372 Manolakis v Carter [2008] FCAFC 183 Nyoni v Chee Koon Hee [2013] FCA 701 R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141 Re Wakim; Ex parte McNally (1999) 198 CLR 511 Rogers v Asset Loan Co Pty Ltd [2008] FCA 1304 Stergiou v McGrail [1994] FCA 241 SZNFR v Minister for Immigration and Citizenship [2009] FCA 851 Underdown v Secretary, Department of Education, Employment and Workplace Relations [2009] FCA 965 White Industries Aust Ltd v Federal Commissioner of Taxation (2007) 160 FCR 298 Williams v Hunt [1905] 1 KB 512
Date of hearing:	9 August 2013
Place:	Perth
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	119
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
First Respondent

DEVESH SHETH
Second Respondent

FRANK PECZKA
Third Respondent

DARREN FRIEND
Fourth Respondent

RAYMOND GRIFFITHS
Fifth Respondent

ANDREW VAN BALLEGOOYEN
Sixth Respondent

CK HEEN PTY LTD
Seventh Respondent

ALLEASING PTY LTD
Eighth Respondent

CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF HEALTH
Ninth Respondent

JULLIAN MURPHY
Tenth Respondent

SHIRE OF KELLERBERRIN
Eleventh Respondent

THERESA BEECH
Twelfth Respondent

JUDGE:	GILMOUR J
DATE OF ORDER:	18 SEPTEMBER 2013
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.The proceedings against the first, second and seventh respondents be dismissed.

2.The proceedings against the third, fourth and fifth respondents be dismissed.

3.The proceedings against the ninth, tenth and twelfth respondents be dismissed.

4.The proceedings against the sixth respondent be dismissed.

5.The proceedings against the eleventh respondent be dismissed.

6.The proceedings against the eighth respondent be dismissed.

7.The applicant pay the respondents’ costs, on an indemnity basis, to be taxed if not agreed.

8.The applicant pay the costs of the first, second and seventh respondents in relation to the applicant’s interlocutory application for injunctive relief dated 22 May 2013, on an indemnity basis.  

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
First Respondent

DEVESH SHETH
Second Respondent

FRANK PECZKA
Third Respondent

DARREN FRIEND
Fourth Respondent

RAYMOND GRIFFITHS
Fifth Respondent

ANDREW VAN BALLEGOOYEN
Sixth Respondent

CK HEEN PTY LTD
Seventh Respondent

ALLEASING PTY LTD
Eighth Respondent

CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF HEALTH
Ninth Respondent

JULLIAN MURPHY
Tenth Respondent

SHIRE OF KELLERBERRIN
Eleventh Respondent

THERESA BEECH
Twelfth Respondent

JUDGE:	GILMOUR J
DATE:	18 SEPTEMBER 2013
PLACE:	PERTH

REASONS FOR JUDGMENT

1. The respondents variously apply primarily for dismissal of the proceedings against them for want of jurisdiction and/or pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) (the FCA Act). There are alternative claims to strike out the applicant’s substituted statement of claim. I will, in due course, deal with the respondents, or groupings of respondents in turn.

   Introduction

2. The applicant, a pharmacist, sold his pharmacy business, as well as the land at 92 Massingham Street, Kellerberrin, in Western Australia on which the business was carried out.  He alleges that he sold the pharmacy business by a written sale agreement dated 13 March 2013 to Chee Koon Hee, the first respondent.  He further alleges that after the agreement was signed the name C K Hee Pty Ltd, the seventh respondent, as trustee for the C K Hee Family Trust, was added as a purchaser without his knowledge or consent.

3. He also alleges that also on 13 March 2013 he sold the land to a “Purchaser” but that after the contract of sale was signed it was “further counter-signed by a number of other signatories identified only by illegible signatories with no names or addresses or contact details”.  He alleges that apart from Devesh Sheth, the second respondent, there were other “shareholders” not disclosed to him prior to signing both agreements and that none of the other “potential purchasers could be identified by word of mouth or paper”.

4. Mr Chee Koon Hee in his affidavit sworn on 1 June 2013 in support of the application filed on his behalf and that of Devesh Sheth and C K Hee Pty Ltd annexed a copy of the contract for the sale of the land between the applicant as seller and the seventh respondent as trustee for the C K Hee Family Trust, S C Tan Pty Ltd (ACN 092 946 015) as trustee for the S C Tan Family Trust and Kruti Pty Ltd (ACN 117 836 183) as trustee for the D R Sheth Family Trust, as the Buyers (the land contract).  He deposes that the contract was executed by the respective directors of the purchaser companies on 12 March 2013 and by the applicant on 13 March 2013.  He also annexed a copy of the sale contract for the pharmacy business (the business contract).  This copy shows both himself and C K Hee Pty Ltd, as trustee for the C K Hee Family Trust, as purchasers.

5. However, the copy of the business contract annexed to the applicant’s affidavit, sworn 9 August 2013, discloses only Chee Koon Hee as purchaser but is otherwise identical to the copy annexed by Chee Koon Hee.

6. I infer that the name of the company, C K Hee Pty Ltd as trustee for the C K Family Trust, was added to the copy held by Chee Koon Hee after the business contract was executed.

7. However, on 18 April 2013, two documents entitled “VARIATION OF SETTLEMENT DATE” were executed varying the settlement date under each of the land contract and the business contract, to 22 May 2013.  The document relating to the land contract was executed by C K Hee Pty Ltd as trustee for the C K Hee Family Trust, S C Tan Pty Ltd as trustee for the S C Tan Family Trust and Kruti Pty Ltd as trustee for the D R Sheth Family Trust.  The document was signed by the respective directors of those companies, Mr Chee Koon Hee, Mr S C Tan and Mr Devesh Sheth.

8. The document in relation to the business contract was signed by the applicant and by Chee Koon Hee as sole director and sole secretary of C K Hee Pty Ltd as trustee for the C K Hee Family Trust.  That company in that capacity was disclosed in clear terms as the buyer.  The applicant, when asked about this said from the bar table that he must have overlooked this fact as to the identity of the nominated purchaser before he signed this document. 

9. The alteration of the name of the purchaser in the business contract and the “illegible signatories” on the land contract are each alleged by the applicant to constitute misleading and deceptive conduct and a breach of those contracts.  However, he made it clear in oral submissions that his overarching complaint was that the real and undisclosed purchaser of both the land and the pharmacy business was the Shire of Kellerberrin, the eleventh respondent.  This allegation finds no support in the evidence beyond the assertion of the applicant.  The contracts are not to that effect.

10. The applicant alleges that he relied upon the fact that he was selling the business to Chee Koon Hee and the land to the three companies.  So much may be accepted.  However, he also signed the variation of settlement date document disclosing the purchaser of the business as C K Hee Pty Ltd as trustee for the C K Hee Family Trust.  This evidences an acknowledgment on his part that the business contract was to proceed to settlement with that company as purchaser.  The “illegible signatories” on the land contract are, as Chee Koon Hee has deposed, the directors of each of the purchasing companies.

    The applicant as an unrepresented litigant

11. I accept now, as I have previously in other applications in this proceeding, that a degree of latitude ought be afforded to an unrepresented litigant: Underdown v Secretary, Department of Education, Employment and Workplace Relations [2009] FCA 965 at [17]. However, this confers no licence upon an unrepresented litigant to place to one side or to disregard the procedural requirements imposed by the Rules: SZNFR v Minister for Immigration and Citizenship [2009] FCA 851 at [16].

    Section 31A - principles

12. It is important to appreciate that the proceeding, or a part of it, need not be hopeless or bound to fail for it to have no reasonable prospect of success: s 31A(3) of the FCA Act.

13. In Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 70 IPR 146, Rares J reviewed the proper construction of s 31A. The relevant principles from that decision were summarised by Jacobson J in Commonwealth Bank of Australia (ACN 123 123 124) v ACN 000 247 601 Pty Ltd (in liq) (Formerly Stanley Thompson Valuers Pty Ltd) [2006] FCA 1416 at [30] as follows:

    (a)in assessing whether there are reasonable prospects of success, the Court must be cautious not to do an injustice by the summary dismissal;

    (b)there will be reasonable prospects of success if there is evidence which may be reasonably believed so as to enable the party against whom summary judgment is sought to succeed at the final hearing;

    (c)evidence of an ambivalent character will usually be sufficient to amount to reasonable prospects; and

    (d)unless only one conclusion can be said to be reasonable, the discretion under s 31A cannot be enlivened.

14. The “no reasonable prospect” of success test:

    (a)may be satisfied where there is a defect in the pleadings which may not be cured, or where there is evidence which reasonably excludes the possibility that facts essential to the success of the claim or defence will be able to be established: Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401; and

    (b)requires the Court to consider the question of whether there is a real issue of law and fact to be tried.  If a dispute centres on questions of fact, the Court must decide whether the opposing party has evidence of sufficient quality and weight to be able to succeed at trial.  In some cases, the asserted facts will be so improbable that there will be no utility in allowing them to go to trial: Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FCR 372.

15. Conversely, the test of a “reasonable prospect” of success is whether the prospect is real and not fanciful or merely arguable: White Industries Aust Ltd v Federal Commissioner of Taxation (2007) 160 FCR 298; Rogers v Asset Loan Co Pty Ltd [2008] FCA 1304.

16. The question whether jurisdiction exists in the Court in relation to a proceeding whether in whole or part is a relevant consideration.

17. Without jurisdiction there can be no valid exercise of power: Australian Health Insurance Associated Ltd (formerly Voluntary Health Insurance Association of Australia Ltd) v Esso Australia Pty Ltd (1993) 116 ALR 253.

18. A matter arises under Federal law “… if the right or duty in question in the matter owes its existence to Federal law or depends upon a Federal law for its enforcement whether or not the determination of the controversy involves the interpretation (or validity) of the law”: Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission (2007) 157 FCR 260 at [80] citing R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141 at 154.

19. This means, among other things, that before the Court may exercise its jurisdiction it must be clear that a matter involves a “real controversy” to be determined: Direct Factory Outlets Pty Ltd v Westfield Management Ltd (2003) 132 FCR 428 at [14].

20. The Court does not have jurisdiction to determine common law causes of action except in its accrued or associated jurisdiction, where the common law claim arises in conjunction with a claim over which the Court has statutory jurisdiction: Croker v Commissioner of Taxation [2006] FCA 372 at [26].

21. The Court will not have accrued jurisdiction where no claim is made which can attract the Court’s original jurisdiction: Glass v State of New South Wales (1994) 52 FCR 336 at 339.

22. In Re Wakim; Ex parte McNally (1999) 198 CLR 511, Gummow and Hayne JJ (with whom Gleeson CJ and Gaudron J agreed at [25] and [26]), observed at [139]:

    [139]The central task is to identify the justiciable controversy. In civil proceedings that will ordinarily require close attention to the pleadings (if any) and to the factual basis of each claim.

23. Significantly, in the context of this application, where an applicant is unable to identify any ground of jurisdiction in the Federal Court of Australia in respect of the relief he or she seeks, the applicant can properly be said to have no prospects of success and not simply, no reasonable prospect of success.  In those circumstances, summary judgment is appropriate: Broadbent v Medical Board of Queensland (2011) 195 FCR 438 at [199], [213], [218].

24. The respondents have the onus of persuading the Court that the applicant has no reasonable prospects of success. But once the respondents have established a prima facie case that the applicant has no reasonable prospect of success, the applicant must respond by pointing to specific factual or evidentiary disputes that make a trial necessary: Jefferson Ford at [127].

25. The first stages to be undertaken in an assessment of whether a proceeding or a part of a proceeding has no reasonable prospects of success, as identified in Jefferson Ford at [126], relevantly requires:

    (a)identification of the causes of action pleaded;

    (b)identification of the pleaded facts said to give rise to that cause of action; and

    (c)a review of the evidence (if any) tendered in support of the claim for judgment.

    The statement of claim

26. The applicant, on the morning of the hearing, filed a substituted statement of claim (statement of claim).  He also filed on the day of the hearing an affidavit sworn on 9 August 2013 which substantially reproduces the content of the allegations contained in the statement of claim.  The statement of claim, like its predecessor, is very difficult to comprehend.  These reasons reflect my best efforts at understanding what the applicant is attempting to plead.  The resolution of this application was made even more difficult because the majority of the respondents written outlines of submission addressed the earlier statement of claim and not the substituted statement of claim.

    The applicant’s claims for relief

27. The relief sought by the applicant in his originating application is as follows:

    1.Respondents 1, 2, 3, 4, 5, 6, 7 and 11

    1.1Conract of sale between Emson Nyoni (Seller) and Cee Koon Heen (buyer) dated 13 March 2013 be set aside for breach of Australian Consumer Law (ACL) ss 18 and 22 and Trade Practices Act 1974 s 52.

    2.In the premises pleaded in paragraphs pleads with the Court to either revoke ot suspend  the Notice of the Delegate dated 24 April 2013 for the Schedule 8 Poisons licence

    3.        

    4.B. In the premises pleaded in paragraphs that the Court void or rescind sale agreements dated 13 March 2013. And that respondents be denied any specific performance remedy.

    5.

    6.C. Court orders Alleasing from maliciously prosecuting applicant by allowing a fair trial under the ACL requirements in the Federal Court under Unconscienable conduct and halt any proceedings by Alleasing until a fair trial, which has never happened.

    7.        

    8.        D Damages for conspiracy

    9.        

    10.      E Damages for past, present and future earnings.

    11.      F. Costs

    12.      

    13.      G. Any relief the Honourable Court thinks fit.

    14.      

    (Transcribed without amendment)

28. The relief sought in the statement of claim is as follows:

    A.Sale Agreement for the pjarmacy business and associated buikding at 92 Massingham Street dated 13 March 2013 between Emson Nyoni and Chee Koon Hee an be set aside with orders prohibiting specific performance pursuant to s. 18 of the ACL 2010.

    B.Notice dated 24 April from Delegate of CEO be revoked pursuant to s. 18 of the ACL 2010 .

    C.All proceedings against Applicant by Alleasing Pty Ltd be be set aside or in the alternative be subjected to a proper hearing under s. 18 and s. 22 of the ACL 2010.

    D.A declaration that in the premises pleaded in paragraphs 6, 13, 17, 18, AND 19   above, or any one of them, Mr Peczka, and, or, Mr Friend, and, or, and or Mr Mr Raymond Griffithswas guilty of the tort of misfeasance in public office.

    E.Damages for misfeasance in public office in the premises pleaded in paragraphs   6, 13, 17, 18,  19 and 35 or any one of them.

    F.Damages pursuant to sections s. 18 of the ACL 2010 and or of the Trade Practices Act and, or, sections 77 and 79 of the FTA against the Shire for the contravention pleaded in paragraps6, 16, 17, 18, 19, 22, 28, 30, 32, 33, 35, 36, 39 and 40.above, or, any one of them.

    G.Damages pursuant to sections232, 233, 234, 235, 237, 242, and 245 of the ACL 2010 and sections 82 and 97 of the TPA, and, or, sections 77 and 79 of the FTA agains Mr Hee, Mr Seth, Mr Mr Peczka, Mr Friend, Mr Griffiths, Dr Van Ballegooyen, Alleasing Pty Ltd, CEO of Health WA, Ms Murphy, Shire of Kellerberrin and Ms Beech , Mr , Mr Friend, <r Peczka, and, the contraventions pleaded in paragraph s 6, 16, 17, 18, 19, 22, 28, 30, 32, 33, 35 and 36 , 39 and 40or anyone of them above.

    H.Damages against  Respondents  One, Two, Three, Four, Five, Six, Seven, Eight, Nine, Ten, Eleven and Twelve for the torts pleaded in paragraphs 6, 16, 17, 18, 19, 22, 28, 30, 32, 33, 35 and 36, 39 and 40  above,  or any one of them.

    I.Damages for Defamation undersection 18 of the ACL 2010 or section 52 of the TPA against the Respondents One, Two, Three, Four, Five, Six, Seven, Eight, Nine, Ten Eleven and Twelve n Pragraphs 6, 16, 17, 18, 19, 22, 28, 30, 32, 33, 35, 36, 39 and 40 or any one of them.

    J.Damages for conspiracy  against Respondents Ine, Two, Three, Four, Five, Six, Seven, Eight, Nine, Ten, Eleven and Yweve the premises pleaded in paragraphs 6, 16, 17, 18, 19, 22, 28, 30, 32, 33, 35, 36, 39 and 40  above, or anyone of them.

    K.Damages for loss of current and future earnings in the premises pleaded in paragraphs  6, 16, 17, 18, 19, 22, 28, 30, 32, 33, 35, 36, 39 and 40 above, or anyone of them.

    L.Interest.

    M.Any other relief as this Honourable Court thinks fit.

    N.Costs.

    (Transcribed without amendment)

1. It is evident from F to K in the claims for relief in the statement of claim that the applicant relies upon the same paragraphs in the statement of claim, in relation to different causes of action as against different groupings of respondents.  This, of course, cannot be the case logically and points up the real difficulties encountered in trying to discern the applicant’s various claims.

   First, second and seventh respondents

2. The first and second respondents submit that the Court has no jurisdiction to hear the applicant’s claim against them because the applicant’s claim for relief is based on defamation.  The seventh respondent submits that this Court has no jurisdiction to hear the applicant’s claim against it because the applicant’s claim for relief is substantially based in contract, namely, for rescission of the land and business contracts.  The first, second and seventh respondents also submit that the applicant has failed to sufficiently particularise, or provide any evidence in support of his claim for relief based on alleged misleading and deceptive conduct sufficient to establish a triable claim.

3. Accordingly, they submit that the applicant has failed to make out, or to sufficiently particularise, any claim against any of them under Federal law, including any alleged breach of ss 18 or 22 of the Australian Consumer Law in Sch 2 of the Competition and Consumer Act 2010 (Cth) (the ACL) which would attract the Federal Court’s original jurisdiction and accrued jurisdiction to determine this matter.

4. The applicant has relied principally on ss 18 and 22 of the ACL to seek relief (based in contract) in his originating application.

5. In the applicant’s handwritten affidavit sworn 22 May 2013, he alleges misleading and deceptive conduct in relation to the “formation” of the land and business contracts.  In his written submissions dated 10 June 2013, he seeks to elaborate on the alleged misleading and deceptive conduct as follows:

   ... it became clear that the purpoted sale was between Seller and Shire of Kellerberrin organised by Frank Peczka and Raymond Griffiths, CEOs of Narembeen and Kellerberrin respectively

   . . .

   Not only are the signatures illegible, applicant submits that the obscure signatures and those behind them intended to mislead or deceive applicant by concealing the real faces behindthe purchase who have now emerged as the Shire of Kellerberrin, Froank Peczka, Raymond Griffiths who on or about 20 May 2013 signed a contract with Dryandra Hostel, for services to be provided from Kellerberrin Pharmacy.

   (Transcribed without amendment)

6. By this the applicant extended his accusation concerning the “real” purchaser(s) beyond the Shire of Kellerberrin to include Messrs Peczka and Griffiths, the third and fifth respondents.  However, as I have already explained, the purchasers of the land and the pharmacy business are detailed in the land and business contracts.  The change to the purchaser of the business was known to the applicant at least when he signed the variation document.  Again, as I found, there is no evidence whatsoever that the Shire of Kellerberrin is the purchaser of the land or the pharmacy business as alleged by the applicant.  Neither is there any such evidence in relation to Frank Peczka and Raymond Griffiths.  The evidence is to the contrary.

7. The evidence does not support the applicant’s case that he was misled as he alleges at the time of entering into the land and business contracts, thereby inducing him to enter into the contracts. Again, the evidence is to the contrary. It is not uncommon for a party to an agreement such as the business contract to nominate a trustee company as purchaser. This is clearly what occurred after the business contract was executed and it occurred with the knowledge and consent of the applicant as his execution of the variation document attests. The pleading in this respect is sadly deficient. I find that the applicant’s claim pursuant to ss 18 and 22 of the ACL and/or s 52 of the Trade Practices Act 1974 (Cth) (the TPA) have no reasonable prospects of success and ought be dismissed.

8. Additionally, the applicant’s statement of claim as against these respondents alleges defamation by the first and second respondents as well as “collusion”.  It is difficult to discern any cause of action in conspiracy either as pleaded or upon a review of the evidence. 

9. The relief sought in the originating application extends to relief in relation to a notice issued under the Poisons Regulations 1965 (WA) (the Regulations) by a delegate of the Chief Executive Officer of the Department of Health (the CEO) on 24 April 2013, in relation to a Schedule 8 poisons licence (the Notice) and the Alleasing litigation. For reasons I will explain later in respect to other respondents, these are without any reasonable prospect of success and ought be dismissed.

   Defamation

10. The statement of claim alleges defamation at [11]-[15] but this cause of action cannot stand alone after the dismissal of the other causes of action.

    Conspiracy

11. The substance of the applicant’s allegations of conspiracy are to an extent interwoven with allegations of misleading and deceptive conduct, although the pleading is somewhat disjointed, seems to be that:

    (a)The eleventh respondent, in collusion with the first, second and seventh respondents, provided support for the purchase of the applicant’s pharmacy.

    (b)The eleventh respondent is the true purchaser of the land and business, and is using the first and seventh respondents “as a corporate cover”.

    (c)The third respondent assisted the first and second respondents in establishing pharmacies in Bruce Rock and Narembeen.

    (d)The second, third, fourth and fifth respondents had made several attempts to obtain the pharmacy business using a variety of methods, all of which were intended to facilitate a rival pharmacy or pharmacist.

    (e)The third, fourth and fifth respondents used the eleventh respondent, in an attempt to establish a rival pharmacy, to build a rival pharmacist’s residence in Kellerberrin, as well as to purchase a “pharmacy premises” a couple of doors down from the applicant’s pharmacy.

    (f)The third respondent facilitated and/or aided Mr Bateman trespassing on the applicant’s pharmacy.

    (g)The third respondent fabricated charges with Mr Bateman during the trespass.

    (h)The third, fourth and fifth respondents met with the second respondent at the Shire office and Shire resource centre on several occasions to discuss the Kellerberrin pharmacy.

    (i)The eleventh respondent sponsored a rival pharmacist, the second respondent, to replace the applicant as the pharmacist in Kellerberrin.

    (j)The fifth respondent, in collusion with the first, second, third, fourth, sixth, seventh, eighth, ninth, tenth, eleventh and twelfth respondents, conspired, defamed and made numerous false allegations to Pharmacy Regulatory Authorities against the applicant.

    (k)The sixth respondent advised one of the applicant’s customers to lodge a complaint against the applicant.

    (l)The fifth respondent contacted the Pharmaceutical Council of Western Australia (the Council) to lodge a complaint.

    (m)The fifth respondent caused the tenth respondent to trespass on the applicant’s property when he was in hospital in Perth. It is alleged that during this visit the tenth respondent “violently turned documents, papers and other things upside down in search of unexplained targets”. It is further alleged that the fifth respondent further caused the tenth respondent to re-enter the pharmacy, “following another search or hunt”.

    (n)The fifth respondent caused the tenth respondent to destroy the applicant to secure the Kellerberrin pharmacy away from the applicant.

    (o)The sixth respondent encouraged patients to use other pharmacies away from Kellerberrin.

    (p)The eighth respondent conspired with the eleventh and/or the third, fourth or fifth respondents to harm the applicant and his business.

    (q)The eleventh respondent and/or the third, fourth and fifth respondents worked with Kodak in 2004-2007 before engaging the eighth respondent.

    (r)The fifth and eleventh respondents and/or the third and fourth respondents colluded with the eighth respondent to create a non-existent debt with the intention of haring the applicant and his business.   The eighth respondent then went on to claim $28,000 “in a secretive default judgment hidden in a local Court in NSW without Applicant’s knowledge”.

    (s)The tenth respondent seized a number of documents and expired medication after “rummaging and turning the pharmacy upside down using a police warrant”. The tenth respondent then commenced proceedings in the Magistrates Court. The applicant alleges that a “brief of prosecution” which had been prepared by the State Solicitor’s Office contained false allegations, false photographs and distorted evidence. It is alleged that this brief was used by the tenth respondent to revoke the applicants Schedule 8 licence. It is alleged that the fifth and eleventh respondents “motivated” and “sponsored” the “unwarranted” visits of the tenth respondent to the applicant’s pharmacy.

    (t)The twelfth respondent, in collusion with the first, third, fourth, fifth, sixth and eleventh respondents and other unidentified respondents, incited patients to file complaints against the applicant with the Council.

    (u)The twelfth respondent, in collusion with the third, fourth, fifth, sixth and eleventh respondents, incited a Department of Health Inspector, Mr Bateman, to file a complaint against the applicant.

    (v)The twelfth respondent, in collusion with the third, fourth, fifth, sixth and eleventh respondents, requested Medicare Australia to file a strong complaint against the pharmacy’s stock levels and opening hours.

12. At the very heart of a claim for conspiracy is the existence of an agreement, between two or more persons, made for the predominant purpose of injuring another, rather than motivated by self interest: Hughes v Western Australian Cricket Association (Inc) (1986) 19 FCR 10.

13. The applicant’s cause of action in conspiracy has no reasonable prospects of success as a matter of law.  The substance of the applicant’s claim is that these respondents have acted in concert to destroy the applicant’s business in order to further their business interests either in competing to supply pharmaceuticals in Kellerberrin, or to acquire the pharmacy.  The “conspiracy” asserted by the applicant is one predominantly motivated by self-interest on the part of these respondents rather than the predominant purpose of injuring the applicant.  As the applicant pleads at [13] of his statement of claim, it was to promote a sale of the applicant’s business “by hook or crook”.  The applicant, however, has not alleged that he sold the land or business at an under-value or at a value lowered because of this asserted conduct.  Nor did he tender any evidence of loss or damage allegedly suffered under any head of claim.  Indeed, he conceded in oral argument that he entered into those contracts willingly.  As I mentioned, his real complaint is that the real purchaser under those contracts is the Shire of Kellerberrin. 

14. Those claims too have no reasonable prospect of success. 

15. The applicant’s proceedings against these respondents should be dismissed.   

    Third, fourth and fifth respondents

16. The applicant in his originating application claims as against the third, fourth and fifth respondents:

    (a)The setting aside of contracts of sale between the applicant (as seller) and the first respondent (as buyer) dated 13 March 2013, for breach of ss 18 and 22 of the ACL and s 52 of the TPA;

    (b)The revocation or suspension of the “Notice to Delegate dated 24 April 2013 for the Schedule 8 Poisons licence”;

    (c)Orders preventing the eighth respondent “from maliciously prosecuting applicant by allowing a fair trial under the ACL requirements in the Federal Court under Unconscienable [sic] conduct and halt any proceedings by [the eighth respondent] until a fair trial, which has never happened”;

    (d)Damages for conspiracy; and

    (e)Damages for past, present and future earnings.

17. No cause of action arises as against these respondents that the contracts of sale dated 13 March 2013 be set aside.  None of them are a party to the contracts.  This claim has no reasonable prospects of success as against these respondents and should be summarily dismissed. 

18. Likewise, no cause of action can be identified in seeking, as against these respondents, the revocation or suspension of the “Notice to Delegate dated 24 April 2013 for the Schedule 8 Poisons licence”.  None of them has any role to play in the administration of the Poisons Act 1964 (WA) (the Poisons Act).  Nor is it alleged that they do.  This claim too has no reasonable prospects of success as against the third, fourth and fifth respondents and should be summarily dismissed.

19. Self-evidently, no cause of action can be identified in seeking, as against these respondents, orders preventing the eighth respondent from pursuing its judgment debt against the applicant.  This claim also has no reasonable prospects of success as against them and should be summarily dismissed.

20. The applicant also seeks from them damages for conspiracy.  The claim of conspiracy requires further consideration.

21. The allegations pleaded in this respect against these respondents in the statement of claim are as follows:

    16.      Respondent THREE Mr Frank Peczka

    16,1. Was CEO of the Shire of Kellerberrin till early 2009.

    …

    17.In 2009 0r thereabout, Frank Peczka, as described in paragraph 6.1 above assisted Respiodents ONE and TWO establish Bruce Ric and Narembeen Pharmacies.

    18.From 2009 till 2013 Devesh Seth Frank Peczka, Darren Friend and Raymond Griffiths made several attempts to procure Kellerberrin pharmacy away from Applicant using a variety of methods all intended to facilitate a rival pharmacist or pharmacy.

    19.As pleaded in paragraph 6.10 above, the new and current rival “pharmacy” has been operational since about January 2013 or earlier

    18.1.On or around the middle of 2009 Frank Peczka completed construction of a new house in Leake Street, Kellerberrin and as later confirmed by Darren Friend, in or around February 2010, the house was earmarked for a new pharmacist recruit. for the Shire.

    18.3. The new premises for the proposed rival pharmacy located a couple of doors away from Applicant’s  pharmacy  disclosed in Shire minutes of February 2010 were designed and set up by Frank Peczka in early 2009.

    18.2. In February 2010, the Shire and Darren Friend confirmed in Shire Council minutes the proposed new pharmacist and that a new PBS number had been applied for through Medicare and ACPA.

    18.3. The proposed pharmacist was purportedly identified as a “proponent” and in due course when the attempt to obtain licences for the rival pharmacy failed, Darren Friend could not find the desired rival pharmacist and the house constructed by Frank Peczka  set idle, before it was handed to a Shire gardener who still occupies it now.

    18.4. The actions by Respondent Three   that destabilised Applicant and his business to eventually facilitate a rival pharmacist include:

    18.4.1. Facilitating and or aiding  trespass into Applicant’s pharmacy using a Department of Health official Robert Bateman on 2 October 2007

    18.4.2. Fabricating charges with Robert Bateman during trespass

    18.4.3. Undue harassment of Applicant by Robert Bateman  by disturbing Aplicant’s peace.with Respondent Three’s knowledge.

    18.4.4. Cause Applicant to suffer from exposure to cinduct likely to injure the reputation of the Applicant by exposing him to hate, contempt or ridicule

    28.4 Actions of Respondent Three constituted a concerted action by a combination of two or more persons to accomplish an unlawful purpose or a lawful purpose by criminal or unlawful means, causing damage to the Applicant

    …

    19.In the premises pleaded in paragraphs 17 and 18, Respondent THREE colluded with a number of other parties to deprive Applicant of his business.

    …

    18.      Respondent FOUR Darren Friend

    18.1     Was CEO of the Shire of Kellerberrin till early 2010..

    18.2 Was responsible for advising the council in relation to the functions of a local government under the Local Government Act and other written laws.

    18.3Was required to ensure that advice and information is available to the council so that informed decisions can be made.

    18.4Was  basically responsible for the implementation of the decisions of the council and also takes care of managing the day to day operations of the local government.

    18.5On or around October 2009, Darren Friend and the Shire, Respondent ELEVEN instituted an application for a Pharmaceutical Benefits Scheme (PBS) number to set up another Pharmacy, a few doors away from Appelant’s pharmacy.

    18.6The Shire sponsored a rival pharmacist, Respondent TWO, unbeknown to Applicant, to replace Applicant in Kellerberrin as pharmacist, and in their minutes of a Shire meeting on or around 10 February  2010, chaired by Darren Friend, published defamatory remarks against Applicant and his business.

    18.7On or around 17 March 2010 Australian Community Pharmacy Authoritty (ACPA) and Medicare Australia approved Applicant;s application for a new PBS number, rejecting the Shire’s attempt to do the same.

    18.8On or after 17 March 2010, Darren Friend, after receiving notification from ACPA on the failure to obtain a PBS number for the Shire, confronted Applicant in his pharmacy at 92 Massingham Street, Kellerberrin using abusive language and vowed .. “I shall return…” as he stepped out of Aplicant;s pharmacy.

    18.9On his return after a few years, respondent FOUR was executing a further attempt to grab Applicant’s pharmacy as described in paragraph 6.7 above.

    18.10This was followed by a strong letter from Stan McDonnell, the Shire President, demanding Applicant sell up his pharmacy and residency to the Shire

    18.11constituted a concerted action by a combination of two or more persons to accomplish an unlawful purpose or a lawful purpose by criminal or unlawful means, causing damage to the Applicant

    19.      Respondent FIVE Raymond Griffiths

    19.1Is the current CEO of the Shire of Kellerberrin after serving as deputy CEO for respondent THREE and respondent FOUR between 2003 and 2013..

    19.2Is responsible for advising the Shire Council in relation to the functions of a local government under the Local Government Act and other written laws.

    19.3Is required to ensure that advice and information is available to the council so that informed decisions can be made.

    19.4Is basically responsible for the implementation of the decisions of the council and also takes care of managing the day to day operations of the local government.

    19.5While still Deputy CEO to respondent THREE and FOUR  on or around middle of 2009, Raymond Griffiths met Respondent TWO at the Shire Office and on several occasions at the Shire Resource Centre to discuss Kellerberrin pharmacy in the presence of Shire Council president, Frank Preczka and or Darren Friend.

    20Between 2003 and 2013 Responent FIVE in collusion with Respondents One, Two, Three, Four, Six, Seven, Eight, Nine, Ten, Eleven and Twelve conspired, defamed, and made numerous false allegations to  Pharmacy Regulatory Authorities against Applicant which were later found to be untrue.

    20.1In 2008 Respondent Five compiles a list titled “Residents of Kellerberrin who use Kellerberrin Pharmacy” and organised staff or individyals to go door to door around Kellerberrin asking them to  write their names and sinautures into the Respondent’s list.

    20.2The final list with names and signatures with a large cross section of people from Kellerberrin, including some of Applicant’s customers did not show any information about a petition and when Respondent Five took the list to National MP for the Wheatbelt, Mia Davis, as a petition, the MP noted that it did not conform to requirements of a petition, presumably, due to its deceptive title.

    20.3None of the community members, including Applicant’s customers on that “list” could confirm the veracity of that purported petition to Applicant.

    20.4Community members who signed a list of Residents who use Kellerberrin Pharmacy were not aware of the intention of Respondent Five and or the Shire to treat the list as a petition for further submission, without consent, to other authorities such as Pharmacy Regulatory Authorities, Members of Parliament and and or public consumption.

    20.5On numerous occasions Respondent Five has conspired with various individuals, made malicious and disparaging statements against Applicant and his business and assisted organisation of a rival pharmacy including:

    20.5.1On or around the middle of 2007, Respondent Five contacted Department of Health and Pharmaceutical Council of WA and Medicare Australia to complain that “Kellerberrin Pharmacy is never Open”, “if Pharmacy open, unqualified staff are dispensing and not Emson” … “that he Pharmacy is dirty.” “Kellerberrin Pharmacy is closed or is closing down”, “the Shire have found a new owner to take over Kellerberrin Pharmacy, due to Emson’s failure”.

    20.5.2The same allegations continued to be made through Applicant’s customers, such as Victor Lawrence, Christine Laird, Gregory Hunt, Dryandra Hostel, Iris Litis and Kellerberrin Hospital. In 2007, 2008,. 2009, 2010, 2011, 2012 and 2013.

    20.5.3Further, in 2011, 2012 and early 2013 Applicant contacted Respondent Five to report flooding of Aplicant’s pharmacy roof caused by the Shire gutters deliberately channelling any rain from the neighbouring Shire roofs, onto Kellerberrin Pharmacy roof, creating floods and leaks through the roof and damage of some fixtures in Applicant’s pharmacy.

    20.5.4Respondent Five refused to cooperate with Applicant, and instead replaced the neighbouring the roof at the  Shire Resource Centre with a brand new roof with no gutters or downpipes, leaving all the water to flood onto Applicant’s roof and backyard. This has given serious concern to the registering authorities and or public who have noticed, on some occasions the deliberate leaks described above.

    20.5.5Two independent expert reports confirming above damage are in the hands of the Pharmacy registration Board (the Board) responsible for approval of registration of pharmacy premises in Qestern Australia. One report was compiled by a Building Structural Emgineer and the other by a specialist roof repairer from Perth in 2012.

    20.5.6On or around 19 June 2012, Respondent Five caused Jillian Murphy, an inspector,  (Respondent Ten) accompanied by another member, apparently from the same Department,  of Health to trespass into Applicant’s pharmacy, while Applicant was away in Hospital in Perth, with a locum pharmacist present at the premises

    20.5.7During that visit Respondent Ten and accomplice violently turned documents, papers and other things upside down in search of unexplained targets, including several photographs taken without consent, such as the safe for storing Schedule 8 medicines and downloads of computer data without consenrt. Applicant was advised that Respondent Ten and accomplice spent about 3 hours at the premises with no record left to explain the aim or findings of the apparent witch-hunt.

    20.5.8On or around 20 June 2013, Respondent Five further caused Respondent Ten to re-enter Applicant’s pharmacy, accompanied by the Registrar of the Pharmacy Registration Board of WA and the Inspector from that Board. Following another search or hunt, large amounts of information, including photographs, computer downloads and paperwork was removed.

    20.5.9Some of the evidence came to light upon Applicant’s return when he discovered that certificates of registration, required to be on display in any pharmacy for the general public , one for Premises Registration and the other for Poisons Permit and another from AHPRA, for Applicant’s National registration as a pharmacist, were never found. Furthermore, numerous prescription duplicate pads were missing, and one in particukar for a Schedule 8 drug was later reported as a Schedule 8 drug dispensed previously by Applicant without a prescription., when in actual fact the prescription had been removed to facilitate evidence that was later used in a brief to prosecute Applicant for Schedule 8 rights.  Upon Applicant’s return no record of seized records or any report of the visits were made available to Applicant.

    20.5.10Respondent TWO disclosed to Applicant on or about 10 March 2013 that the Sale Agreement and Contract of Sale of 92 Massingham Street were prepared jointly with Respondent Five due to the Shire’s experience with business and real estate. As a result, Respondent Five prepared and co-signed the Dhire contract with Dryandra Nursing Home. to supply pharmaceutical benefits from Kellerberrin pharmacy without the Applicant.

    …

    (Transcribed without amendment)

1. The observations I made earlier to the effect that the alleged conspiracy has no reasonable prospects of being made out as a matter of law are also apt in relation to these respondents.

2. Even if that were not so, the applicant’s cause of action in conspiracy has no reasonable prospects of success with regard to the “facts” pleaded by the applicant.  This is because the facts alleged by the applicant as linking the third, fourth and fifth respondents to the actions of other parties, said to comprise the conspiracy to injure the applicant, on their face, do not give rise to a plausible, let alone reasonable, inference of an agreement between the respondents to injure the applicant.  The relevant allegations of conspiracy pleaded are as follows:

   (a)in relation to the actions of the Department of Health officers, the links relied on by the applicant to demonstrate an agreement to injure comprise the following:

   (i)the third respondent “facilitated” and/or aided Mr Bateman trespassing on the applicant’s pharmacy;

   (ii)the third respondent fabricated charges with Mr Bateman during the “trespass”;

   (iii)the fifth respondent “caused” the tenth respondent to “trespass” on the pharmacy on a number of occasions;

   (iv)the fifth respondent caused the tenth respondent “to destroy [the] applicant to secure [the] Kellerberrin Pharmacy away from [the] applicant”; and

   (v)that the fifth [and eleventh] respondents had “motivated” and “sponsored” the “unwarranted” visits of the tenth respondent to the applicant’s pharmacy.

   (vi)The fifth respondent, in collusion with the first, second, third, fourth, sixth, seventh, eighth, ninth, tenth, eleventh and twelfth respondents, conspired, defamed and made numerous false allegations to Pharmacy Regulatory Authorities against the applicant. 

   (vii)The twelfth respondent, in collusion with the first, third, fourth, fifth, sixth and eleventh respondents and other unidentified respondents, incited patients to file complaints against the applicant with the Council. 

   (viii)The twelfth respondent, in collusion with the third, fourth, fifth, sixth and eleventh respondents, incited a Department of Health Inspector, Mr Bateman, to file a complaint against the applicant. 

   (ix)The twelfth respondent, in collusion with the third, fourth, fifth, sixth and eleventh respondents, requested Medicare Australia to file a strong complaint against the pharmacy’s stock levels and opening hours.

   (b)In relation to the judgment debt obtained against the applicant by the eighth respondent:

   (i)the fifth [and eleventh] and/or the third and fourth respondents colluded with the eighth respondent to create a non-existent debt; and

   (ii)[the eleventh respondent] and/or the third, fourth and fifth respondents worked with Kodak in 2004-2007 before engaging the eighth respondent.

   (c)In relation to the purchase of the pharmacy business:

   (i)the third respondent assisted the first and second respondents in establishing pharmacies in Bruce Rock and Narembeen;

   (ii)the second, third, fourth and fifth respondents had made several attempts to obtain the pharmacy business using a variety of methods, all of which were intended to facilitate a rival pharmacy; and

   (iii)the third, fourth and fifth respondents met with the second respondent at the Shire office and Shire resource centre on several occasions to discuss the Kellerberrin pharmacy.

3. Assuming the truth of these allegations, they do not, individually or in combination, constitute a plausible, let alone reasonable, inference that these respondents entered into an agreement to conspire to injure the applicant.

4. I am satisfied that these claims of conspiracy have no reasonable prospect of success.  Indeed, upon a consideration of the pleaded “facts”, I would characterise them as hopeless.  They should be summarily dismissed.

   Ninth, tenth and twelfth respondents

5. The ninth respondent is the CEO.  The tenth respondent is Jullian Murphy.  The twelfth respondent is Theresa Beech.

6. The originating application claims no relief as against these respondents although there is a claim made against respondents 1-7 and 11 for an order revoking or suspending the Notice.

7. I referred to this aspect of the applicant’s claims in my earlier judgment by which I dismissed the applicant’s application for an injunction: Nyoni v Chee Koon Hee [2013] FCA 701. The statement of claim also claims this relief at large.

   The Poisons Act and Regulations

8. It is necessary to understand the statutory framework of the Poisons Act and the Regulations.

9. The applicant is a pharmacist within the meaning of s 5 of the Poisons Act.  One consequence of this fact is that, ordinarily, the applicant can deal in poisons. 

10. The applicant and the CEO have at all times been regulated by the Regulations.

11. The long title of the Poisons Act discloses that its purpose is, amongst other things, to regulate and control the possession, sale and use of poisons and other substances.

12. Subject to some exceptions, a person cannot manufacture, distribute, supply or sell by wholesale or retail any poison unless that person is licensed under s 24 of the Poisons Act to do so.  Poisons are any substance included in a schedule in Appendix A of the Poisons Act.

13. Pharmacists are an exception to this general prohibition. Pursuant to s 23(2) of the Poisons Act they are, subject to the Poisons Act, authorised to:

    … manufacture, have in his possession, and to use, supply or sell at his pharmacy in the ordinary course of his retail business any preparation, admixture or extract containing any poison….

    but subject, however, to such conditions and restrictions as may be prescribed and subject to any notice given by the CEO pursuant to the regulations made under s 64(2)(ha).

14. The CEO is, subject to the Minister and the Poisons Act, responsible for the administration of the Poisons Act and can delegate his or her functions and powers under the Poisons Act.   Those functions and powers are conferred by various provisions of the Poisons Act and Regulations.

15. Regulation 43A authorises the CEO to revoke, by notice, the authority conferred on a pharmacist by s 23(2) of the Poisons Act in relation to poisons included in Schedule 8. That revocation may be total or subject to strict conditions, may be made in respect of all or any specified drugs or poisons and may be amended or revoked by further notice.

16. In this case, the revocation only related to Schedule 8 poisons, which are controlled drugs requiring restriction of manufacture, supply, distribution, possession and use to reduce abuse, misuse and physical or psychological dependence.

17. The revocation applied only to the applicant and did not attach to his pharmacy business.  It would be permissible for the applicant to engage another pharmacist not subject to the same restriction to deal with Schedule 8 poisons.

    Application to the ninth respondent

18. Nowhere in his originating application or statement of claim does the applicant assert any allegations of material fact against the ninth respondent capable of invoking the jurisdiction of this Court.

19. The only explicit allegations of fact relating to the ninth respondent are at [31]-[33] of the statement of claim:

    31.      Respondent NINE Chief Executive Officer of Health WA

    31.1.The Chief Executive Officer(CEO) of the Department of Health has power conferred by the Minister to administer, among other things, the Poisons Act 1964 and the Poisons Regulations 1965

    31.2.The CEO may, by notice given to a person referred to in section 23(2) of the Act, revoke the authority conferred on that person by that section in relation to poisons included in Schedule 8 or specified drugs or both, and that revocation may be –

    (a)total or subject to strict conditions; and

    (b)made in respect of all or any specified drugs or poisons to which the authority relates; and

    (c)may be amended or revoked by a further notice.

    33. The administration of the Act and Regulation s are carried out by a Delegate, in the Chief Pharmacist of the Pharmaceutical Services Branck of the Department of Health WA.

    33.1. The Chief Pharmacist in tirn appoints or suoervises the Investigating Officer, charged with the responsibility to visist and audit Applicant on the occasions pleaded under Respondent Nine,

    33.2. Ultimately, the Chief Pharmacist recommends to the CEO, the action against Applicant, such as the Notice to Revoke Applicant’s S8 licenve of 24 April 2013.

    33.3. The CEO must establish beyond reasonable doubt any material put in front of him by the Chief Pharmacist or investigator, before exercising his discretion as in paragraph 32.2 above.

    33.4. In the premises pleaded under Respondents Nine Three, Four, Five Eleven and Twelve, the CEO failed to establish the untruthfulness of the evidence  created and used for prosecuting Applicant and hence the CEO  and or Gelegate through the Chief Pharmacist’s investigator was negligent resylting in harm to Applicant on the constituted a concerted action  by a combination of two or more persons to accomplish an unlawful purpose or a lawful purpose by criminal or unlawful means, causing damage to the Applicant.

    . . .

    33.In the premises pleaded in paragraph 31 alllegations made against Applicant were false and motivated by Responden Five and Eleven who sponsored those unwarranted visits.

    33.1.Acts of Respondent Ten were acts in revenge of Robert Bateman’s legal proceeding and generated to harma Applicant.

    33.2.Respondent Five caused redpondent Teb to destroy Applicant to secure Kellerberrin Pharmacy away from Aplicant for the benefit of the Shire of Kellerberrin using Chee Koon Hee as a tool

    33.3.In the circumstances Applicant suffered harm to his profession, business and personal life due to malicious prosecution because there was no basis for any actions taken by Respondent Ten other than the desire to destroy Applicant.

    (Transcribed without amendment)

20. The applicant then seeks relief in the statement of claim that the “Notice dated 24 April from Delegate of CEO be revoked pursuant to s.18 of the ACL 2010”.

21. Such a claim for relief in respect of an action of an officer of a Department of the State of Western Australia, acting under a regulation made pursuant to legislation enacted by the Parliament of Western Australia, is not a claim arising under one of the enumerated heads of original jurisdiction in this Court conferred by s 39B of the Judiciary Act 1903 (Cth), or alternatively under some other law of the Commonwealth Parliament.

22. The applicant purports to attract the original jurisdiction of this Court by alleging various breaches of the ACL. 

23. The question is whether such a claim is sufficiently “attached” to a “Federal claim” in these proceedings, so that it can be said to fall within the same justiciable controversy, and, therefore, within the accrued jurisdiction of this Court.

24. There are no facts pleaded capable of establishing any connection between the delegate of the CEO and the commercial transactions of private individuals.  There is no relevant common factual “substratum” with a claim relating to the review of administrative action of an officer of a Department of the State of Western Australia.  Such claims are completely separate and distinct.

25. The claim against the ninth respondent falls neither within the original jurisdiction of this Court nor within any accrued jurisdiction as being part of the same justiciable controversy as a claim that validly invokes the jurisdiction of this Court.  Accordingly, it ought be dismissed.

    The tenth and twelfth respondents

26. As I said, there is no relief sought in the originating application against the tenth and twelfth respondents save that they seek damages for conspiracy against unidentified parties and damages for the past, present and future earnings in respect of an unidentified cause of action. The latter aspect of this claim is not based on any identified alleged causes of action.  Accordingly, it is only necessary to consider the claim of conspiracy.

27. With respect to the facts said to support any alleged cause of action in conspiracy, the extent of the pleadings against the tenth respondent is as follows:

    32.      Respondent TEN Jillian Murphy

    32.1.In late 2010 Aplicant commenced procedings against a delegate of the Department of Health and Chief Pharmacist Murray Patterson along with Robert Bateman, the then Seniour investigator from the Department.

    32.2.Among other reasons, that proceeding had its origins in the turmoil created by the Delegate and his unprofessional  behaviour towards Applicant during a number of visits to Applicant’s pharmacy from 2007 till 2010, and trespass on 2 October 2007.

    32.3.After the trespass the Delegate at the Department of Health accepted my request that the next audits be conducted with a pharmacist witness present to avoid the devastating miscounting that had led to frivolous allegations being made to the Department by Robert Bateman after submitted erroneous counts of Schedule 8 drugs to the Department.

    32.4.Mr Rose Atkinson conducted a few such subsequent audits which were acceptable.

    32.5.Beyond that a pharmacist from Merredin Pharmacy did the joint audits for about 3 months, followed by a pharmacist from Northarm Pharmacy for another 3 months and yet another pharmacist from the Wheatbelt for another 3 months. All joint reports were acceptable.

    32.6.When Robert Bateman left he was replaced by Jillian Murphy Respondent Ten).

    32.7.When Jillian Murphy. Introduced hrtself on her first violent, unwitnessed entry at Applicant’s pharmacy premiseson 17 August 2011, she declared that Robert was always right and promised to avenge the suit against Robert. Very unprofessional and caricature appearance at first site, it took me a while to understand their story, as Applicant believed that he could be dealing with real drug dealers, and at the end it turned out they were simply trespassing, just like Robert.

    32.8.After 3 hours they left without any comment, and I never heard from them ever again until esarly Jsnusry 2012 when Respondent Ten again violently entered

    32.9.On that visit while Respondent Ten secretly in a corner without  involving Applicant, as the harmacy was quite busy that morning, there was no witness in the form of a pharmacist as previously agreed.

    32.10.On or around the first week of January 2012 Respondent Five, made nother trespass into Aplicant’s [harmacy depriving Applicant of his freedom

    32.11.Respondent Ten seized a number of documents and expired medication after rummaging and turning the pharmacy upside down using a police warrant that a crime was about to be committed.

    32.12.Applicant, staff and customers were humiliated and distressed by the 3 hour ordeal.

    32.13.As pleaded in pragraphs 20.5.6 to 20,5.9, Respondent Ten made further raids on Applicant’s pharmacy iwhile Applicant was away and invited other authorities from the Board and removed a number of documents, including certificates of registration without any explanation.

    32.14.Respondent Ten then dropped a Magistrate Court Noticharging Applicant with 6 offences which Applicant immediately disputed.

    32.15.ABrief of rosecution prepared by the State Solicitors Pffice contained false allegations, false photographs , distorted evidence all sworn as fact.

    32.16.That brief was used by Respondent Ten who also appeared as witness to convict Applicant in early January 2013 and the covictionwas referred to by the Delegate of the Department of Health in giving Notice to revoke Applicant’s Schedule 8 lpermit.

    (Transcribed without amendment)

28. The extent of the pleadings against the twelfth respondent is as follows:

    40.      Respondent TWELVE Theresa Beech

    40.1.At all material times Respoindent Twelve is the senior Nurse at Kellerberrin Hospital who claims to be Manager of the Hospital. For leadership and medical authority the substantive person is Dr Van Ballegooyen, who also solely runs the Kellerberrin Shire Surgery, just adjacent to the aforenamed Hospital. It is in her capacity as a Seniour Nurse that Respondent Twelve has indulged, for several years in destroying Aplicant’s business, reputation and customer loyalty.

    40.1.1.On 27 November 2007 respondent 12, in collusion with other  respondents 3 incited a Dorothy Jennings to file a complaint against Applicant with the then Pharmaceutical Council of Western Australia.

    40.1.2.On 3 January 2008, respondent 1, in collusion with other respondents  incited  a Steve Britton to file a complaint against  Applicant  with the then Pharmaceutical Council of Western Australia.

    40.1.3.On 6 November 2008, respondent 1 in collusion with other respondents incited  a Christie White to file a complaint against t Applicant  with the Pharmaceutical Council of Western Australia.

    40.1.4.On 2 September 2009 respondent 12 , in collusion with respondents 3, 4, 5 6 and 11 incited a Michael Upton to file a complaint against me with the Pharmaceutical Council of Western Australia.

    40.1.5.On 4 June 2009 respondent 12 in collusion with respondents 3, 4, 5, 6 and 11 incited a Department of Health inspector, Robert Bateman, Department of Health to file a complaint, against t me, on behalf of a Rinaldo Paron with the Pharmaceutical Council of Western Australia..

    40.1.6.On November 2009 Mr respondent 12 in collusion with respondents 3, 4, 5, 6 and 11 requested Medicare Australia to file a strong complaint against Applicant's pharmacy stock levels and opening hours.

    40.1.7.After failing to succeed in all these attempts and many others, respondent 12 continued to use the same imputations described above, using her position in the Hospital and a good relationship with some elements in the Department of Health. And respondents 3, 4, 5, 6, 10 and 11 , including respondents 1 and 2 approximately end of 20-12 till present. Perhaps the reason I have not heard from responden 12 is that she has reverted to more covet means under the cover and protection of people like respondent 10.

    40.1.8.Respondent 12 has since 2008 exploited the starter pack resgime to carry out full disoensing of medicines in her Hospital. Poisons regulations across the country normally permit a hospital to carry a very minimal amount of urgent medication, such as antibiotics, painkillers ets to enable nursing staff, on the rescommendation of a Dr to commence these medications after hours or public holidays using starter packs. But respondent 12, has cunningly worked out claims that the hospital is in need of much mare, and with the support of some elements in the Department of Health, bow runs a full dispensary with proper wholesale

    40.1.9.Actions of Respoindent Twelve were constituted a concerted action by a combination of two or more persons to accomplish an unlawful purpose or a lawful purpose by criminal or unlawful means, causing damage to the Applicant.

29. It is unclear as to what is the claim asserted against the tenth and twelfth respondents.  The applicant was refused leave to amend his originating application having been given the opportunity to amend: Nyoni v Chee Koon Hee (No 2) [2013] FCA 703.

30. To the extent that the applicant alleges that the tenth and twelfth respondents were engaged in a conspiracy against the applicant, the bases asserted for that conspiracy appear to be the same as those asserted against the third, fourth and fifth respondents. 

31. Furthermore, to the extent that the statement of claim asserts that the tenth and twelfth respondents misled or deceived the applicant, no material facts have been pleaded capable of establishing any potential cause of action of that nature against the tenth and twelfth respondents.

32. Accordingly, based on his pleaded case, the applicant has no reasonable prospect of success in respect of any purported causes of actions as against the tenth and twelfth respondents.  While the existence of a reasonable cause of action is distinct from its pleading, the failure by the applicant to plead a reasonable cause of action, despite opportunity to amend, in this case is demonstrative of the fact that no such cause of action exists.  None of the various affidavits of the applicant contain admissible evidence that support the contrary conclusion. Summary judgment should accordingly be entered in favour of the ninth, tenth and twelfth respondents against the applicant as his purported claims have no reasonable prospect of success.

    The sixth respondent

1. The pleading in the statement of claim concerning Dr Van Ballegooyen are principally at [22]-[27] as follows:

   22.      Respondent SIX Andrew Van Ballegooyen

   22.1.Since the advent of brand substitution of pharmaceutical benfits in pharmacy right across  Australia, around 2004 or earlier, Dr Andrew Van Ballegooyen, the Shire GP and only one in Kellerberrin, has used his clinical consultations to disparage Applicant by telling his patients that Appllicant dispenses “wrong” medicines, resulting in an exodus of vital customers.

   22.1.3.On numerous  occasions between 2005 and today, Dr Van Ballegooyen has continued to encourage patients to go to ther pharmacies away from Kellerberrin, for original brands or as for “correct” medicines or “correct” treatment.

   22.1.3.1. In 2006 a Mr Kevan Reed, then a customer at Applicant’s pharmacy was advised by Dr Van Ballegooyen to make a complaint to the then pharmacy registering authority, Pharmaceutical Council of Western Australia alleging that Applicant had dispensed a wrong blood pressure tablet to him.

   22.1. 3.2.Neither Mr Reed nor Dr Van Ballegooyen ever identified the tablet in question to Applicant or investigators, except assert that “When I looked at the tablet, it had a different colour or appearance from what I used to get.” It is pertinent to note here that sometimes original brands and generic brands may look different, but the essential ingredients for which they are legally supplied is identical.

   22.1.3.2. This has been repeated with innumerable number of customers, details of which can be made available prior to trial.

   22.1.4.Lost prescriptions

   22.1.5. Long absence from GP practice at Kellerberrin without a locum

   22.1.6.Diversion of prescriptions away from my pharmacy

   22.1.7. Abuse of the medical starter pack system to undermine my pharmacy

   23.Each of the representations made by Dr Van Ballegooyen in the preceding paragraphs was intended to inflict harm on Applicant and his business  and it did

   23.1.Before the difficulties pleaded in paragraphs 22 commenced, Aplicant’s pharmacy enjoyed an unfettered and exponential growth in turnover and prescription vol;ume from 2003 to 2006/7. Following the concerted efforts by respondent Six and other respondents, Applicant’s business has been declining  as a direct result of the role of Respondent Six, together with a number of other respondents described elsewhere in this Statement of Claim.

   24.Each of the statements by Dr Van Ballegooyen were not based on the truth and particularly:

   24.1.Conveyed a defamatory meaning to the community and Health professions at large.

   24.2.Lowered the Applicant in the estimation of others

   24.3.Exposed the Applicant to hatred, contempt or ridicule

   24.4.Incites hatred, contempt or ridicule, on grounds of, but  not limited to, race

   24.5.Cause Applicant to be shunned or avoided

   24.6.Is defamatory on the facts, false and true innuendo, with reference to the Hypothetical referee.

   25.Statement made with intentional malice or lack of good faith through deliberate misrepresentation, where  Dr Van Ballegooyen  was negligent and or reckless.

   26.The publication of the representations in the premises pleaded was conduct which was misleading and or deceptive or likely to mislead or deceive.

   27.Further, the conduct pleaded in those previous paragraphs was in the course of trade and commerce.

2. The applicant has not set out which relief he seeks against which respondent in the originating application.  In any event, the relief set out in (A) to (C) of the originating application could never concern Dr Van Ballegooyen.  The only relief that could (possibly) be sought against him under the originating application is:

   (a)damages for conspiracy which is set out in (D); and

   (b)damages for past, present and future earnings which is set out in (E).

   Damages for conspiracy (D)

3. A claim for conspiracy could only have its genesis from [20] of the statement of claim. This pleads that Dr Van Ballegooyen colluded with the first, second, third, fourth, fifth, seventh, eighth, ninth, tenth, eleventh and twelfth respondents as they interfered with the applicant's business.

4. The pleading of conspiracy said to involve the sixth respondent alleges greater detail at [22]-[23] but none of which actually alleges any specific conduct relevant to a cause of action in conspiracy against the sixth respondent.  He is alleged, broadly, to have defamed the applicant but the consequent allegation at [23] of the statement of claim is directed to conspiracy.  My earlier observation concerning an action in conspiracy is applicable here.  This claim, I find, has no reasonable prospects of success. 

   Damages for past, present and future earnings (E)

5. I have already concluded that no such action could lie on the facts pleaded.  Apart from other difficulties, these claims are not directed to any particular respondent.

   The eleventh respondent

6. The eleventh respondent is the Shire of Kellerberrin.

7. The allegations made against the eleventh respondent are predominantly set out at [38] of the statement of claim.  They are to the effect that the eleventh respondent:

   (a)Colluded with the first, second and seventh respondents to purchase the applicant’s pharmacy, using the first and second respondents as a cover.

   (b)Established a rival pharmacy located at 96 Massingham Street, Kellerberrin.

   (c)Employed the sixth respondent with directions to harm the applicant.

   (d)Colluded with the eighth respondent to create a “non-existent debt”, which was then enforced against the applicant.

   (e)Caused unauthorised power cuts and incited action by other governmental authorities to harm the applicant.

8. The allegations of conspiracy against the eleventh respondent are substantially the same as those asserted against the third, fourth and fifth respondents (employees of the eleventh respondent).  My conclusions as to those respondents likewise apply to the eleventh respondent.

9. The applicant has been unable, despite numerous opportunities, to raise an arguable claim against the eleventh respondent.  His conspiracy claims have no reasonable prospect of success and ought be dismissed.

   The eighth respondent

   Rule 26.01 - Abuse of process

10. Rule 26.01 (d) of the Federal Court Rules 2011 (Cth) provides that judgment may be given where the proceeding is an abuse of process of the Court.

11. The eighth respondent is Alleasing Pty Ltd.  It read the affidavit of Steven Brian Green sworn on 7 June 2013 who deposed that:

    (a)on 15 August 2012, the eighth respondent was granted default judgment against the applicant by the Local Court of New South Wales;

    (b)on or about 2 November 2012, a Property (Seizure and Sale) Order (PSSO) was issued against the applicant in favour of the eighth respondent;

    (c)enforcement of the PSSO was suspended until 17 May 2013 to allow the applicant time to apply to have the default judgment set aside;

    (d)on 16 May 2013, the Local Court of New South Wales dismissed the applicant’s application to have the default judgment set aside; and

    (e)on 4 June 2013, the Magistrates Court of Western Australia dismissed the applicant’s application to suspend the enforcement of the PSSO.

12. The applicant’s originating application in these proceedings was filed 20 May 2013, some 4 days after the dismissal of his application to set aside the default judgment.

13. Pursuant to the originating application, the applicant is seeking an order that:

    [The eighth respondent ceases] from maliciously prosecuting [a]pplicant by allowing a fair trial under ACL requirements in the Federal Court under unconscienable conduct and halt any proceedings by [the eighth respondent] until a fair trial, which has never happened.

    (Transcribed without amendment)

14. Pursuant to the statement of claim, the applicant is seeking relief that:

    All proceedings against Applicant by [the eighth respondent] be set aside or in the alternative be subjected to a proper hearing under s.18 and s.22 of the ACL 2010.

    (Transcribed without amendment)

15. In other words, the applicant is seeking to invoke the jurisdiction of this Court under the ACL to effectively seek a stay of enforcement properly obtained through the Local Court of New South Wales and the Magistrates Court of Western Australia.

16. Pursuant to s 39(1) of the Local Court Act 2007 (NSW) (Local Courts Act):

    A party to proceedings before the Court sitting in its General Division who is dissatisfied with a judgment or order of the Court may appeal to the Supreme Court, but only on a question of law.

17. Pursuant to s 40(1) of the Local Court Act:

    A party to proceedings before the Court sitting in its General Division who is dissatisfied with a judgment or order of the Court on a ground that it involves a question of mixed law and fact may appeal to the Supreme Court but only by leave of the Supreme Court.

18. Pursuant to s 40(1) of the Magistrates Court (Civil Proceedings) Act 2004 (WA):

    A party to a case that is not a minor case may appeal to the District Court against –

    (a) any order made by the Magistrates Court in the course of proceedings in the case; or

    (b) the judgment of the Magistrates Court in the case.

19. Given the availability of these appeals processes, the order and relief sought by the applicant as against the eighth respondent is an abuse of process.  An abuse of process can arise where the same or similar complaint is sought to be litigated in more than one court: Williams v Hunt [1905] 1 KB 512. It is an abuse of process to make a collateral attack upon an unappealed decision of the court or upon a decision which, having been appealed, has been affirmed: Stergiou v McGrail [1994] FCA 241. For that reason alone the proceedings against the eighth respondent should be dismissed.

20. I would otherwise, pursuant to s 31A, dismiss these claims as having no reasonable prospect of success.

21. As to the orders sought in the originating application:

    (a)the relief claimed at [1.1], [2] and [4] does not include the eighth respondent;

    (b)the relief claimed at [6] is an abuse of process or should otherwise be dismissed for reasons expressed above;

    (c)it is unclear whether the relief sought at:

    (i)[8], being damages for conspiracy; and

    (ii)[10], being damages for past, present and future earnings;

    are claimed from the eighth respondent given the seemingly limiting and confusing effect of [1] due to the inadequate and embarrassing drafting of the originating application.

22. As to the relief sought in the statement of claim:

    (a)A, B, D and E cannot apply to the eighth respondent;

    (b)C is, as I have found, an abuse of process:

23. The allegations pleaded against the eighth respondent in the statement of claim are as follows:

    29.Respondent EIGHT Alleasing Pty Ltd

    29.1.As pleaded in paragraph 37.4 below, Respondent Eleven and or Respoindents Three, Four and Five worked with Kodak in 2004 to 2007 before engaging Respondent Eight in 2009 following the collapse of Kodak around 2008.

    29.2.Respondent Eleven cplluded with Respondent Eight in 2008 to claim falsely that Kodak had an interest in the Kodak Digital kiosk sitting at Applicant’s pharmacy, simila  to the one used by the Shire in the Kellerberrin Newsagensy until abot 2008.

    29.3.Alleasing then went on to gerate false debts and deductions from Applicant’s account using Kodak’s details, subsequentrly claiming $28 000.00 in a secretive default judgment hidden in a local Court in NSW without Applicant’s knowledge around August 2012.

    29.4.On or around 7 January 2013 Alleasing unleashed a sheriff on Applicant to seize property against the false claim in paragraph 30.3 and Applicant had no option but to seek an order suspending the seizure of propery by Alleasing Pty Ltd, followed by a series of futile attempts by Applicant to free himsels in the jforeign jurisdiction of NSW at an astronomical cost where the prosecustion and judgment were conducted in a lawful way to achieve an unlawful purpose.

    30.In the premises pleaded in paragraph 30

    30.1.Respondent Eight instituted or caused to be instituted a civil suit against Applicant  and Applicant uffered special grievance thereby. 

    30.2.The plaintiff must establish that the civil suit terminated favorably to him/her or in a manner not adverse to him/her.

    30.3.Applicant was denied procedural justice from the beginning.On 

    30.4.There was never any reasonable or probable cause for the prosecution by Respondent Eight.

    30.5.    Respondent was activated by a malicious motive in instituting the civil proceedings in NSW, away from WA, to ensure maximum damage to Applicant.

    30.6.Applicant suffered damage, as a proximate result of the  malicious prosecution. 

    30.7.Further, in the premises pleaded under Respondent Eleven below, Respendent Eight conspired with Respondent Eleven and or Respondents Three, Four or Five to harma Applicant and his business actions of Respondent Eight constituted a concerted action  by a combination of two or more persons to accomplish an unlawful purpose or a lawful purpose by criminal or unlawful means, causing damage to the Applicant.

    (Transcribed without amendment)

24. It is then alleged, in effect, that the NSW Local Court proceeding was a malicious prosecution.

25. The claims in conspiracy against the eighth respondent have no reasonable prospect of success for the reasons I have explained in respect of other respondents. 

26. The several claims against the eighth respondent have no reasonable respect of success and ought be dismissed.

    Costs

27. In the exercise of the Court’s discretion to order costs under s 43 of the FCA Act, costs ordinarily follow the event and the successful litigant will receive its costs, unless special circumstances justify some other order.

28. The ordinary practice of this Court is that the unsuccessful party, usually, will be required to pay the costs of the successful party on a party and party basis, and that practice is not departed from unless the justice of the particular case so requires or some special or unusual feature arises.

    Indemnity Costs

29. A party entitled to costs may apply to the Court for an order that costs awarded in their favour be paid other than as between party and party.

30. To warrant a departure from the ordinary rule that costs be paid on a party and party basis, there should be some special or unusual feature in the case. The question must always be whether the particular facts and circumstances of the case warrant the making of an order for payment of costs other than on a party and party basis: Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225 at 233, 234.

31. Indemnity costs are not designed to punish a party for persisting with a case that turns out to fail. They are not awarded as a means of deterring litigants from putting forward arguments that might be attended by uncertainty. Rather, they serve the purpose of compensating a party fully for costs incurred, as a normal costs order could not be expected to do, when a Court takes the view that it was unreasonable for the party against whom the order is made to have subjected the innocent party to the expenditure of costs: Hamod v New South Wales (2002) 188 ALR 659 at [20].

32. Indemnity costs are appropriate in circumstances such as where allegations were made which ought never to have been made, and is ordinarily enlivened where an action is commenced when proper advice would indicate that the proceeding has no prospect of success: Colgate-Palmolive at 233; Gersten v Minister for Immigration & Multicultural Affairs [2001] FCA 260 at [19].

33. Although the courts are more reluctant to make orders for indemnity costs against litigants in person than legally represented ones, in appropriate cases they will do so: Manolakis v Carter [2008] FCAFC 183 at [77].

34. In Cirillo v Consolidated Press Property Ltd (formerly known as Citicorp Australia Limited) (No 2) [2007] FCA 179 at [5]-[6], features that justified the finding that it was unreasonable for an applicant to have subjected respondents to the expenditure of costs, and the making of an order for indemnity costs were that: the claims had no prospect of success; the pleaded causes of action were offensive and embarrassing, the nature of which was to put the parties to considerable expense and effort both to penetrate what was being said for the purposes of divining what may have been alleged against them and adequately to respond to the pleading; and the pleading made allegations of impropriety without anything to indicate there was any reasonable prospect of success in relation to making out those allegations.

35. Most of these features that justified an indemnity costs order in Cirillo, are present here.

36. The applicant has put the respondents to the expense of defending claims which are either hopeless or devoid of any reasonable prospects of success.  The circumstances are such that, if properly advised, it is very likely that these proceedings would not have been instituted or continued.  

37. The applicant should pay the respondents’ costs, on an indemnity basis, to be taxed if not agreed.

38. The costs of the first, second and seventh respondents in relation to the applicant’s interlocutory application for injunctive relief dated 22 May 2013, for essentially the same reasons, should also be paid on an indemnity basis.

I certify that the preceding one hundred and nineteen (119) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.

Associate:

Dated:       18 September 2013